Obfuscation and Erasure in relation to Groote Eylandt: policy or happenstance?

 

                                             And be these juggling fiends no more believed,

That palter with us in a double sense,

That keep the word of promise to our ear,

And break it to our hope.

Macbeth Act five, Scene eight.

 

 

At the close of my previous post (link here) I mentioned Mr T. Wurramarrba — formerly a longstanding Chair of the Anindilyakwa Land Council (ALC) and, simultaneously, a director of Winchelsea Mining — who resigned as ALC Chair in May 2024 and died on 30 June 2024. The ALC issued a statement mourning his passing which is available on its website (link here).

 

The primary focus of this post are the documents released by NIAA in relation to my requests for documents related to the approval of the various agreements negotiated by the ALC to facilitate the development of the proposed Winchelsea mine. They are available on the NIAA FOI Disclosure log (link here) and are listed as FOI/2526 013 and FOI/2526/031.

 

To provide context for the argument and case study below, it is worth considering the change in tone between the two most recent ALC Annual reports on the issue of the ALC’s engagement with the Winchelsea mine proposal and ALC accountability issues generally.

 

The ALC 2023-24 Annual Report (link here) was finalised in late September and provided to the Minister on 14 October 2024 including a letter of transmittal signed by the new Chair and then CEO Mark Hewitt. In a section titled ‘Message from the CEO’ Mr Hewitt wrote inter alia (see pages 5-10):

 

The reporting period saw significant progress for the ALC across the strategic plan, amidst challenging times with the passing of the ALC’s long standing former Chair, the late Mr T Wurramarrba AO in June 2024….

 

Groote Holdings Aboriginal Corporation has completed the workers accommodation and kitchen at Pole 7A, adjacent to the Alyangula township. The kitchen facilities will provide meals to support the larger developments at Little Paradise. [Little Paradise was intended as the base for operations of the adjacent Winchelsea mine].

 

Significant progress has been achieved in the past year in the development of the Winchelsea Island (Akwamburrkba) resource. A key industry standard report indicating the size of the resource was achieved (Measured JORC report) as well as the completion of a Definitive Bankable Feasibility Study. The environmental approvals process for the Winchelsea resource development is now at an advanced stage.

 

In a section providing a short profile of the CEO (page 19), the Annual Report states inter alia:

 

Mark Hewitt started in the role as CEO of the ALC in September 2011. One of his first tasks as CEO was to work with TOs to develop a strategic plan. …. Mark is an advocate for creating structural change to the way services and businesses operate on the Groote Archipelago to increase TOs ownership, decision-making and participation.

 

During the reporting period Mark held positions as the Co-CEO of Winchelsea Mining and as the Executive Director of Groote Holdings Aboriginal Corporation…

 

Mark has previously held roles with the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs (2005-2011) including as Acting Branch Manager Indigenous Programs Branch (Native Title Representative Bodies and the Aboriginals Benefit Account)…

 

A summary of determinations (see pages 80-81) under section 35(3) relating to section 64(3) allocations reveals that GHAC received $15.4m and the majority owner of the Winchelsea mine, Anindilyakwa Advancement Aboriginal Corporation (AAAC) was allocated $2m from a total annual allocation of $38.28m. In other words, in 2023-24, the ALC allocated 46 percent of its available s.64(3) funds to Winchelsea mine-related projects.

 

Note 9 to the financial statements (see page 130) list Mr T. Wurramarrba’s various Directorships including as a Director of Anindilyakwa Royalties Aboriginal Corporation (ARAC), Anindilyakwa Mining Trust (AMT), … Winchelsea Mining Pty Ltd, and Groote Holdings Aboriginal Corporation (GHAC). The report notes that ARAC, AMT, and GHAC receive Section 64(3) royalty distributions under Section 35 determinations by the Anindilyakwa Land Council as outlined in Note 10. The Note also states that the spouse of the late Chair of the ALC is an elected member of the ALC and receives sitting fees. In relation to Mr Hewitt, the Note confirms that he is also a Director of Groote Holdings Aboriginal Corporation (GHAC) and Winchelsea Mining Pty Ltd, and that his spouse was employed by the Royalties Development Unit of the ALC on a part time basis.

 

I have included these extracts from the 2023-24 report to provide a sense of the extent to which the ALC (and not just its CEO) was embedded either directly or indirectly, in the development of the Winchelsea mine proposal. Moreover, this was in plain sight.

 

In the 2024-25 Annual Report (link here), reporting on the proposed Winchelsea mine is much more muted.

 

There is a detailed chapter (pages 37ff) on governance practices including sections on risk management, on the PGPA fraud and corruption rule, related entity transactions and conflicts of interest policy, all framed as upgraded responses to the 2023 ANAO Audit and the subsequent BellChambers review. But the elephant in the room, the Winchelsea mine proposal, is largely absent.  

 

The only substantive references to the Winchelsea mine are at pages 71 and 72 within a section on Mine Monitoring and Mine Closure where, embedded within a larger discussion of the GEMCO mine, the report discusses the Winchelsea Island Lease Mining Agreement, and Winchelsea Island Lease Exploration Agreement:

 

In each agreement there are numerous contractual obligations that the mining companies need to meet. These compliance requirements can be split into three groups: • payment requirements – which covers the payment obligations • operational requirements – which deals with how the companies operate, and • administrative requirements - which covers the documentation/ reporting requirements. …

 

Winchelsea Mining is yet to commence production and during the period was, in ALC’s opinion, dormant. There were no activities on Winchelsea during the reporting period.

 

It is worth remembering that these two agreements are the core of the FOI requests considered in my two most recent previous posts (link here and link here), and in the two posts published in March this year (link here and link here).

 

What is apparent in the contrast between these two annual reports is that there has been both a significant change in tone, but also in strategic direction since Mr Hewitt was terminated without explanation by the ALC. This was a decision literally made in the shadow of a National Anti-Corruption Commission visit to Groote to investigate as yet unspecified allegations. More generally, there has been no explanation for that change in direction, no admission that mistakes may have been made or alternatively that the change arises from some other factor.

 

Given this, it is worth asking a broader question: are these silences (about the reasons for the termination of the CEO, about the change in the ALC’s strategic direction regarding the proposed Winchelsea mine) merely isolated events, or part of a wider pattern? And if it is a pattern, how far does it extend and what is its purpose?

 

A pattern, not an incident

 

Consider what has happened, entirely separately from any FOI process, since Mark Hewitt's termination as ALC CEO in October 2024. Virtually every reference to Hewitt, multiple videos about the proposed mine and other ongoing matters on Groote Eylandt were quietly removed from the ALC's website. No public announcement of the CEO’s termination was made — not by the Board, not by the Minister. As I have previously pointed out, the Board's own minutes record no reasons for the decision. And on the substantive question of where the Winchelsea mine project stands today, there has been near total silence: no public statement of continued ALC support, no public statement of withdrawal of support, simply an absence — this notwithstanding that, as recently as a few years ago, the mine was being promoted by the ALC in its formal strategic documents as the mechanism for ensuring economic independence for Groote subsequent to the closure of the GEMCO mine. An ASIC extract dated 22 July 2026 shows no filings beyond routine officeholder changes since November 2024, consistent with the Annual Report's own description of the project as dormant.

 

My own reading of this silence, and the passive comment cited above assessing the Winchelsea project as being ‘dormant’ is that the Council is distancing itself from the proposed mine and thus its proponents while leaving the door open for AAAC and its partners to pursue their future involvement and assess the proposed mine’s commercial viability independently of the ALC. In this context, it is worth noting that there are multiple overlaps in Directorships between the ALC, AAAC and GHAC.

 

An ASIC search confirms that the current AAAC nominated Directors are Bradley Bara and Lionel Jaragba, both appointed in November 2024. The AUS China International Mining Pty Ltd Directors remain unchanged since 2018. Interestingly, the formerly high quality and informative Winchelsea mining website (wmining.com.au) is no longer operational.

 

In relation to the documents released by NIAA in relation to the Winchelsea mine approvals processes (FOI/2526/013 and FOI/2526/031) there have been multiple seemingly arbitrary redactions and obstructions that on their face serve little purpose.

 

First, AAAC's changing ownership stake in Winchelsea Mining — reported elsewhere as rising from 60 to 70 percent — has been redacted in multiple places even though the figures are publicly available from multiple sources. They have been provided in evidence to Senate Estimates and are published by ORIC. The ASIC Current Company Extract, a public document, confirms that AAAC owns 70 percent of the shares in Winchelsea Mining.

 

Second, from a 2018 ALC submission to the Minister recording a previously agreed determinative secret ballot of senior Traditional Owners on the proposed Exploration Agreement, the tallies have been redacted: we know the ballot favoured approving exploration, but not by how many votes, against how many, or how many voted at all. It is hard to identify a privacy interest in a numerical tally that attaches to no individual name. The same dynamic has played out previously in at least three other instances:

 

·         at ORIC over its decision to redact the entirety of the Cor Cordis GHAC examination report (link here); and

·         in earlier FOI decisions to impose fees which have the effect of deterring further use of the FOI legislation in relation to matters which were subsequently provided to the Senate by the ALC (link here); and

·         with the case study below regarding the multiple redactions of the names of deceased persons ostensibly for privacy reasons, and likely a decision without precedent in the administration of FOI, and arguably without legal justification.

 

Taken together, these amount to an emerging pattern of employing barriers and redactions which have the effect of undermining the capacity of those seeking to follow events to understand what has occurred, and in the case of the Winchelsea mine proposal, of obstructing the line of sight from:

 

·         on the ground consultations with TOs; to

·         negotiations between Winchelsea Mining and the ALC over the exploration agreement; to

·         the ALC’s largely invisible role in (a) directly and indirectly funding and (b) monitoring the activities of the mining company as it pursued both detailed environmental approvals and sought to identify the extent and potential value of the manganese resource able to be extracted, and on to

·         submissions to the NT Government seeking relevant environmental and other approvals; and then to

·         submissions to Ministers from the ALC and Winchelsea seeking necessary legislative approvals under ALRA.

 

 The case of a name

 

Return to Mr Wurramarrba. He died in June 2024. The ALC's own death notice at the time referred to him, in keeping with ordinary practice, as "Mr T Wurramarrba" — replacing his first name with an initial, not a blank. As the longstanding Chair of the ALC, his name also continues to appear, entirely unredacted, in ALC governance documents published on the Department of Finance's Transparency Portal. Both facts sit awkwardly beside what has happened inside the NIAA's own FOI releases, where due to the redaction of the names of deceased individuals his name (and likely only his name) has been repeatedly redacted. I calculate that his name may have been redacted on around 60 occasions in a cache of documents comprised of around 140 pages. Moreover, these redactions survived an internal review process to which I specifically pointed out the flaws in the assumptions related to cultural sensitivity that appeared to underpin it and proposed alternative ways of referring to Mr Wurramarrba such as using initials without using his first English name. In addition to these instances, there were numerous other s47F redactions that appeared to relate to other persons, to the identification of clans being consulted, and to other ALC staff.

 

The justification offered by the NIAA decision makers rested on the application of the privacy exemption in the FOI legislation (s.47F), which is conditional and requires a balancing to determine that such a redaction is in the public interest. In turn, the context of applying this to a remote Aboriginal community with strong cultural attachments to country and culture, combined with the consultations with the ALC, created an implicit and putative rationale for redacting the names of deceased individuals in the cache of released documents. In fact, there was (to the best of my knowledge) only one deceased person whose name was redacted: Mr Wurramarrba. The decision makers did not explicitly base their decisions on a cultural rationale, but left it implicit, reinforced presumably by the views of the ALC (sought on both occasions).

 

In my arguments supporting my request for an internal review I directly addressed the issue of cultural sensitivity — specifically, that Anindilyakwa custom counsels against naming the recently deceased. I don’t question the existence nor the legitimacy of Anindilyakwa customs. But as I put it to NIAA in my own submissions: Aboriginal societies generally do not erase all reference to a deceased person: they cease using the name and substitute an indirect reference — a kinship term, or a coded reference such as "the former Chair," or initials — usually for a finite period. Indeed, I subsequently learned that the ALC explicitly did this in its notice mentioned at the beginning of this post announcing Mr Wurramarrba’s death in June 2024.

 

Moreover, Mr Wurramarrba was the Chair of a Commonwealth statutory entity, responsible for spending and allocating millions of dollars, and with important statutory responsibilities for protecting the interests of traditional owners. It is clearly in the public interest that statutory officeholders are able to be held accountable for their actions. I cannot imagine any Australian parliamentarian arguing that as a general principle this is not important and not in the public interest. The application of a blanket privacy redaction, more than two years subsequent to Mr Wurramarrba’s death, when the ALC's own practice and the Commonwealth Transparency Portal's own published record do neither, is not obviously an act of cultural respect, and nor is it obviously in the public interest.  

 

A review that reviewed itself

 

There is a second, more structural form of obfuscation at work here: not what has been redacted from documents, but how the review of those redactions has itself been conducted.

 

The FOI Act's internal review mechanism exists to provide a genuinely independent, merits-based second look at a refusal — undertaken by an officer who was not the original decision-maker (s.54C(2)), consistent with the OAIC's own guidance that such reviews be conducted independently of the original decision (FOI Guidelines, paragraphs 9.34 and 9.37). In this case, NIAA advised me that the internal review would involve a meeting between the original decision-maker, the internal reviewer, and the agency's legal team — and that the internal review decision would be the subject of a briefing to senior NIAA executives before it was finalised.

 

Raised directly with NIAA at the time, and in the absence of a response to my concern, the concern remains and is straightforward: a review conducted in the same room as the original decision-maker, and briefed to senior executives before it is finalised, creates at least the appearance — whatever the actual outcome — that the reviewing officer's independence could be compromised.

 

The public interest the Commonwealth set aside

 

The personal-privacy exemption used to justify most of these redactions is meant to protect against the ‘unreasonable’ disclosure of personal information — and ‘unreasonable’, under the OAIC's own Guidelines (paragraphs 6.133–6.134, drawing on the Chandra formulation), requires weighing the public interest in disclosure against the private interest in an individual's privacy. It is not an automatic blanket protection.

 

Weighed against what, exactly? A mining agreement related to a proposal to develop an ore deposit likely worth in excess of $1bn, whose negotiated royalty arrangements are not public, but which has benefited from the commitment of some $80 million in community royalty-equivalent funds in mine related infrastructure (normally funded by the mine owners) and with an associated opportunity cost to alternative and arguably high priority community priorities. Consultations undertaken and oversighted, and an agreement negotiated, on the ALC's side, by individuals — Wurramarrba and Hewitt among them — who simultaneously sat as directors of the company on the other side of the table. A subsequent referral of unspecified matters concerning Mr Hewitt (likely related to media reports of his attempt to be granted a significant equity stake in the proposed project) to the National Anti-Corruption Commission. A petition to Parliament signed by more than 200 Groote Eylandt residents concerned about the ALC's management during exactly this period. And a community of roughly 1,200 residents facing enormous socio-economic challenges.

 

Against that, the NIAA decision-makers’ own reasons record factors such as a concern that disclosure might discourage the flow of information to government, and a general assertion of unfairness to third parties — neither, on close reading, well supported by evidence or particular to this case. A public interest test conducted in the abstract, without weighing the scale of public money involved, the fundamental conflict of interest at the heart of the agreement, the referral to the NACC, or the rights of more than a thousand Groote residents to understand just what has transpired in relation to the proposed project, is patently unbalanced and incomplete in its method. You cannot properly balance interests you have not identified

 

 Conclusion

 

None of this, taken redaction by redaction, looks dramatic. A name here, a percentage there, a set of vote tallies, a review conducted alongside the people whose decision it was meant to test. But taken together, the effect is cumulative: it becomes genuinely difficult — for an interested member of the public, and even for someone who has tracked the issues surrounding the Winchelsea project closely — to reconstruct a clear account of what happened, when, and why in relation to this narrow sliver of the ALC engagement in developing a mine on Winchelsea Island, and ultimately, more generally. That difficulty is not an accident of bureaucratic process. It is, functionally, a form of policy — achieved not through any single decision but through the accumulation of many small ones, each individually arguable even if not entirely defensible, none of which invites scrutiny on its own.

 

What this decision does bring about however, both in its own right due to the number of redactions encompassed in the decision, and in combination with other redactions whether justified or not, is the creation of apparent transparency and compliance with due process which nevertheless obscures and makes impenetrable to all but the most determined readers, the decision-making processes that were actually undertaken by ministers and public servants. Notwithstanding the volume of unclearly organised documents released, replete with technical legal and policy advice, an assiduous reader can discern emerging from the obfuscatory textual mists a set of different, and more awkward facts, which lead to the following uncomfortable conclusions.

 

First, it was not only the former CEO who sat on both sides of the negotiating table, but also the longstanding and highly influential ALC Chair. Second, the ALC itself was aware of this prima facie conflict and nonetheless gave its formal consent to the two agreements needed for the mine to proceed — consent obtained through a mix of strategies that created the appearance, rather than the substance, of conflicts being managed. Third, and most significant: two successive ministers were explicitly advised that Hewitt and Wurramarrba sat on both sides of the negotiation, and both decided in writing that this conflict — one fundamentally at odds with the land council's statutory functions — could be set aside on the strength of a light-touch process that left the conflicted individuals and the land council to manage themselves. Each minister then gave formal approval to the agreements, the final step in the checks and balances the ALRA mining regime exists to provide, precisely so that Aboriginal interests are not manipulated or coerced into unfair arrangements on their own land.

 

These submissions, their assessment by the DPMC and NIAA, and the terms of the decisions have lain quiescent in the files, describing events that were neither hidden nor revealed. It was only when I asked to see them that the reality of the consideration given these matters came to the surface.

 

As I pointed out in my previous posts on these matters, NIAA’s advice to the relevant Ministers in relation to their approvals for the Winchelsea project was in my view inexplicably and seriously deficient, but it is the Minister who makes the decision and who must take responsibility.

 

A further inexplicable element in this story is that NIAA and ORIC do not appear to have raised this fundamental conflict of interest issue with subsequent ministers (though I cannot rule this out absolutely), and nor did they take adequate action to increase the level and intensity of the regulatory oversight of the ALC’s engagement with the owners of the mine and other related corporations such as GHAC so as to prevent adverse outcomes. The revelations in the 2023 ANAO Performance Audit report (link here) makes this quite clear. While there is no way of knowing whether the subsequent ministers understood what had transpired and that there was a fundamental structural conflict of interest in place, my own policy experience suggests that their ignorance of the reality (if that was the case) is almost as problematic as being aware and doing nothing; it would reflect a substantive lapse in the quality of the advice available to them from both the agency and their private Offices.

 

It is worth noting that the two most recent ALC Annual Reports discussed above, which are normally approved by the Minister prior to tabling in Parliament, include within their financial statements explicit Notes on Related Party Disclosures by Board members and staff identifying these potential conflicts. See the extracts for the 2024 Annual report quoted above and Note 10 to the Financial Statements in the 2025 Annual report (link here).

 

What is clear is not only that the ALC Board and its members dropped the ball, but so did NIAA and its predecessor DPMC, and arguably ORIC, and most importantly, so did successive ministers.

 

The elephant in the room for ministers is not the history of the approvals for the Winchelsea mine, but the impending publication of the NACC investigation into matters related to Groote and the ALC. It is not clear whether the NACC briefs the Government on its progress with individual investigations. Given what I have documented over the course of more than 20 Groote related posts based solely on publicly available information, the public record alone raises multiple questions an anti-corruption body would have reason to pursue. My interpretation is that the Winchelsea mine will be at the centre of the NACC investigation, but it may also extend beyond to other issues.

 

In the event that the NACC finds administrative deficiencies, fraud or corruption, there will inevitably be a desire within the government and perhaps even the opposition to cauterise the political wound and minimise the reach of responsibility and blame. If I can think ahead to such an eventuality, then it is not beyond the wit of politicians to do so also.

 

What a close reading of the documents released relating the approvals of the Winchelsea agreements tell us is that in the event that serious maladministration and misfeasance is uncovered, the responsibility should be shared. Individual perpetrators are clearly responsible. So too are those who may have formally agreed to the actions that contribute to any such misfeasance. And so too would be the ministers who turned a blind eye to any such misfeasance or negligently overlooked its possibility. In my view, even if the NACC focusses its findings on a small number of individuals, under the rarely mentioned these days doctrine of ministerial responsibility, successive ministers are at risk of being criticised and held to account either by the Parliament, the media or perhaps even the electorate.  

 

Searching for a single word that best describes the FOI processes applicants face in matters like these, I eventually landed on one of two terms: equivocation, or prevarication. Take your pick. Whether intentional or not, the pattern points to a public sector ill-disposed to scrutiny of its own decisions.

 

But the redactions are, in the end, a symptom rather than the disease. They merely leave an impression that there is something untoward worth dissembling and obscuring. The documents that survive the redactions still show two ministers approving agreements they knew were negotiated by structurally conflicted parties, and two regulators — NIAA and ORIC — who neither escalated the existence of this structural reality to those ministers' successors nor lifted their oversight of the ALC and its associated corporations in response.

 

If the NACC's findings, when they finally emerge, focus narrowly on individual conduct, that account will be incomplete. The doctrine of ministerial responsibility exists precisely for cases like this — where a structural conflict was disclosed, understood, and left in place by the public officials whose job was to manage it. In such an eventuality, whether Parliament, the media, or the electorate chooses to take action is a separate question. But the record, once assembled, and placed into the sunlight of publication, no longer permits the claim that no one knew.

 

 24 July 2026

 

This post was prepared with research assistance from Claude Sonnet 5

A note on motive: incompetence, malice, and the cost of not knowing

 

 

… modest doubt is call'd

The beacon of the wise, the tent that searches

To the bottom of the worst.

Troilus and Cressida, Act 2, Scene 2

 

This is a short postscript to my last post, Traversing the Indigenous policy FOI Labyrinth: high level implications (link here). It was prompted by some commentary I received from regular readers.

I normally don’t elaborate on the quotes I have chosen as the epigraph to a post as Shakespeare’s language is generally clear albeit sometimes requiring close reading. I describe my purpose in including quotations from Shakespeare in my early post A Walking Shadow: rationale and declaration of prior interests from January 2016 (link here). The quote above, and in particular the use of the word ‘tent’ is unusual in that it is quite obtuse to most modern readers. ‘Tent’ refers to a surgical probe or instrument for keeping a wound open while the deeper flesh heals. It describes healthy, cautious scepticism as a wise guiding light and a method for deeply investigating difficult problems and suggests digging into the worst-case scenarios to uncover the true, underlying issues.

This post, based on some commentary from readers, is also an opportunity which I shouldn’t miss, namely, to thank all the readers of this blog, and particularly those who take the trouble to email their thoughts and responses. Some are lodged as public comments, many are private words of encouragement. I sometimes receive constructive critique usually aimed at identifying issues I have missed. I appreciate all feedback, take it seriously, and as is the case below, seek to remedy my mistakes or errors of judgment when they surface.

In relation to my previous post, one reader noted, inter alia:

There are other reasons for delay and obfuscation on such matters that you kindly do not mention: like protecting incompetent politicians and their compliant bureaucrats…

While this hypothetical possibility had crossed my mind, I had deliberately not gone there as I didn’t have the evidence required to make the assertion. Though on reflection, I don't think it is a genuinely rival hypothesis to the one I develop below. An officer's instinct to shield a minister, or a department, from embarrassment is just as plausibly self-preservation reaching upward as the self-preservation reaching sideways that I describe later — the same path-of-least-resistance drift, not a separate, more orchestrated explanation requiring anyone to have planned anything. I return to that pattern, on firmer evidentiary ground, later in this post

A second reader — a former Commonwealth lawyer with substantial experience overseeing FOI decision-making — emailed me in response to argue that my efforts to generalise from the two cases in the concluding section was over-reach insofar as I had not provided the evidence required to draw the conclusion I did.

I take all feedback I receive seriously, and upon reflection and deeper consideration, I think the second reader’s argument was in substance correct. It is worth explaining why, and what I think survives it.

The claim in question was this: that the conduct I documented at ORIC and NIAA ‘emanate[s] from the antipathy of the Executive arm of government to transparency,’ and that the resulting labyrinth is, in some sense, ‘designed to minimise transparency.’ The reader’s objection, stripped to its core, was that two case studies cannot carry a claim that large, and that there is a more familiar and more parsimonious explanation sitting in plain sight, namely, Hanlon's razor — never attribute to malice that which is adequately explained by neglect, ignorance or incompetence. Notwithstanding the litany of administrative shortcomings — decision-makers on leave; deadlines missed under time pressure; the wrong subsection cited by someone who hasn't read the Act closely enough; and officers who would rather not make a controversial call and so default to the cautious, restrictive one — there is nothing that demonstrates that anyone, anywhere, is executing a strategy along the lines I alleged.

I think this is correct, and I will concede it plainly: the language of ‘design’ and ‘emanation’ claimed more than the evidence available to me could support. I have no insight into what any individual decision-maker at ORIC or NIAA actually intended. Indeed, I said as much in places — I described the ORIC sequence as "an unfortunate and almost comical accumulation of administrative misadventures," which is Hanlon's-razor language, not conspiracy language. Having written that, it was inconsistent of me to then reach, in the conclusion, for language implying deliberate top-down design. The reader identified a real defect in my claim. The reader’s acuity and experience inside the APS gives the argument for an alternative explanation substantial weight, and without adequate evidence, it outweighs my speculation about executive intent.

Nevertheless, conceding the individual-motive question (which is important and which I am happy to do) does not detract from the existence of real problems within the administration of the FOI regime. I normally try to see things from alternative vantage points, and in this case through a bottom-up lens of individual instances and decisions, and through a top down systemic lens which views the entire set of decisions made on the issues around Groote and the ALC. What a top-down view reveals, and what Hanlon's razor doesn't explain, is that administrative errors only ever run in one direction.

Over a couple of years’ worth of FOI applications, I have not once seen an agency accidentally over-disclose, accidentally publish something it wasn't required to, or accidentally err on the side of the applicant. Misaddressed emails, missed deadlines, incomplete searches, wrongly cited subsections, decisions made without engaging fully the statutory public interest factors — every one of these failures, however innocently arrived at, lands on the side of less access, not more. Individually, each is plausibly just accident or neglect. Yet as a pattern, the errors or failures are not randomly distributed. That asymmetry doesn't require anyone to have planned it. It only requires that the path of least resistance, for a busy or under-trained or risk-averse officer, points one way — and that nothing in the system corrects for that drift. That is a claim about incentives and institutional culture, not about what is in anyone's head, and it is, in my reconsidered opinion, the claim my original post should have made instead of the one it did.

There is a further point worth separating out, because I think it is actually the more important one, and it survives the motive question entirely. When an agency declines to explain itself — or explains itself badly, or explains itself in terms that doesn’t withstand scrutiny, as happened with ORIC's non-publication rationale — it leaves the person on the other side of the request with an evidentiary vacuum. People do not sit comfortably in vacuums. In the absence of a credible account of what happened and why, the least charitable available explanation tends to fill the space, particularly where there is already a power asymmetry between the party withholding information and the party seeking it. This is true whether or not the least charitable explanation happens to be correct. Put differently: opacity has a trust cost that is independent of the truth of the matter being concealed. A government that cannot or will not distinguish its own incompetence from bad faith, in the accounts it gives of its own decisions, should not be surprised when the wider public narrative stops making that distinction on its behalf.

I am not seeking to use a back door to reinstate the error I made. I am not trying to be too clever by half, and to suggest "I'm not claiming malice, but look how opacity makes malice look plausible" as a way of undermining my admission of error. I genuinely don't know whether what I've documented reflects incompetence, self-preservation, institutional risk-aversion, something closer to the second reader’s account, or some combination that varies by agency and by officer. My point is narrower and, I think, harder to refute: a system opaque enough that a reasonably well-informed applicant cannot tell the difference between neglect and bad faith is a system that has already failed, on its own terms, whichever explanation turns out to be true. The objects of the FOI Act — set out in section 3 and quoted in my last post — are about promoting better-informed public participation and scrutiny. A process that leaves a diligent applicant unable to distinguish incompetence from concealment is not achieving those objects, regardless of which one it is.

Trust in democratic institutions is not infinitely renewable. It is drawn down by exactly this kind of accumulated, unresolved ambiguity, and it is not obviously restored by an agency later proving, case by case, that any individual failure was merely incompetence rather than design. By the time that proof arrives, if it ever does, the applicant — and often the wider public — has already updated toward the worse explanation. Governments that want to be trusted with the benefit of the doubt need to stop generating situations in which the doubt is reasonable.

A final word, since a further post on the specific treatment of the late Mr T. Wurramarrba in the NIAA releases is still in preparation. Nothing in this post should be read as pre-loading that argument. Whatever I say there about patterns of omission and redaction concerning a particular individual will need to stand or fall on the evidence particular to that case — consistency, or its absence, across releases; whether the pattern tracks any coherent application of the claimed exemptions, or something else. The argument made here, about the impact on levels of trust of unresolved opacity in general, is a different and more modest one, and I have tried to keep the two apart.

 

This post has been produced with research assistance from Claude Sonnet 5

 

19 July 2026

 

Traversing the Indigenous policy FOI Labyrinth: high level implications

 

 

This is as strange a maze as e'er men trod,

And there is in this business more than nature

Was ever conduct of. Some oracle

 Must rectify our knowledge.

The Tempest, Act five, Scene one

 

 

Readers of this Blog will know that several of my posts, especially those related to Groote Eylandt, are based on documents obtained under the Freedom of Information Act 1982 (FOI Act). However, I usually pass over the details of the efforts required to obtain them. This post is a brief corrective: not an argument about what the documents show, but an account of the processes by which they arrive or don't, or arrive late, or arrive redacted, often for reasons that are flimsy and don’t stand up under closer scrutiny.

 

To enhance readability, I have kept this post reasonably brief and mostly free of legal argument. A second post, to follow shortly, will address the substantive implications of the emergence of a wider pattern of systemic opacity and often unnecessary secrecy. This post is intended to lay the groundwork for that further post currently in preparation.

 

Two agencies, same texture

 

Over the past several months I have had live FOI matters running simultaneously with the National Indigenous Australians Agency (NIAA) and the Office of the Registrar of Indigenous Corporations (ORIC). Both related to aspects of the administrative and accountability crisis that has engulfed the ALC and the distribution of royalty equivalents on Groote Eylandt. The two are different agencies handling different requests, with no reason to expect their conduct to resemble one another. And yet….

 

With ORIC, a decision on my request for documents relating to an examination of Groote Holdings Aboriginal Corporation (GHAC) was made on 21 May 2026. I did not receive it. I chased it seven weeks later, on 13 July, and was told the email had simply been erroneously misaddressed. Fair enough; mistakes happen. What doesn't simply happen is a second failure sitting behind the first: under section 11C of the FOI Act, agencies are required to publish released documents to a public Disclosure Log within ten business days of giving access. That hadn't happened either. When seven weeks on I asked why, the answer I was given that the decisionmaker had decided to not publish the released documents based on her view that ‘they contain business information of third parties that would be unreasonable to publish’. Coincidentally, she had omitted to include the standard paragraph used by ORIC in statements of reasons relating to the publication (or not) on the Disclosure Log. To its credit, ORIC apologised for this oversight. More seriously, the response cited the wrong subsection of the Act to explain it, and even had they cited the correct section, the facts are not consistent with the rationale communicated to me. The only information released relating to the business information of a third party was the business address of GHAC, which is in fact published on the ORIC website.

 

So, in addition to missing the statutory timeframe for responding to my request, my queries unearthed two further apparent administrative mistakes, namely the failure to publish the released document and to inform me of their decision, and the apparent decision to base it on a reason that doesn’t stand up.  I say apparent decision because notwithstanding seeking confirmation that there is written evidence of the decision maker's decision, the response received has consistently pointed me to the internal review processes applicable under the Act. To be fair, ORIC's most recent correspondence was accommodating on one point: rather than treating the misaddressed email as having started the clock on 21 May, it confirmed I could use my actual date of receipt, 13 July, as the start date for seeking internal review. That is a reasonable position, and I record it as such. The broader problem remains, however, that an internal review deals with the decision's correctness under the Act and is not directed at the quality of the processes used to make that decision.

 

There are issues with the substantive correctness of the decision to withhold the entirety of the investigation report totalling around 90 pages. The decision maker decided to redact the entire document on the basis that section 47E(d) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (namely ORIC). The FOI Act provides that conditionally exempt documents  should be released ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’. The decision maker is required to balance the factors for and against release. To assist decision makers, the Act lists a range of factors that favour access including whether access to the document would do any of the following:

(a) promote the objects of this Act… ;

            (b) inform debate on a matter of public importance;

(c) promote effective oversight of public expenditure;

The decision maker made no direct mention of these factors in making her decision, but it is a balancing process and will need to be determined through a future review process if access is to be made available. Such a process or processes would inevitably involve significant further delays.

 

With NIAA, the sequence has been longer and, in its way, more instructive.

 

On 23 December 2025, NIAA issued its decision on my request FOI/2526/013 which I made on 24 September 2025, and which focussed on the ministerial approvals underpinning the Winchelsea mine. The initial decision on FOI/2526/031 was released on 16 March 2026. I previously published two posts based on these documents (link here and link here).  The material released in the first request comprised a lengthy set of documents, redacted in multiple places. On 13 January 2026 I lodged a detailed request for internal review, running across five separate grounds: missing documents, and three different exemption claims I considered wrongly applied. I noted that the documents released referenced two documents that had not been included in the original release and appeared to come within the terms of my request. NIAA agreed and for technical reasons suggested that I agree to them being considered as a new request for access. This became FOI/2526/031.

 

Nothing happened, at least not visibly, for some time. I later learned why. Both the original decision-maker and the internal reviewer were on leave for the first fortnight after I lodged my request. The FOI team's first substantive discussion of my contentions took place on 27 January 2026, more than a fortnight after I'd made them, and only days before the statutory deadline for a decision. That deadline was, in the event, missed. NIAA applied for, and was granted, an extension and, to its credit, told me so directly and apologetically.

 

What happened next is worth focussing on. NIAA's Chief Lawyer emailed to explain that the internal reviewer had tentatively formed the view that some of the original redactions should be lifted, but before finalising that view, wanted to give the Anindilyakwa Land Council (ALC) a further opportunity to comment. The ALC is not a disinterested bystander in this material; it is the entity whose own conduct much of it describes. It was given eight days to respond to an 83-page document package. I had made my own submissions three weeks earlier and would get no further opportunity to respond to whatever the ALC put forward in reply. And once the internal reviewer's decision was made, it would then go to a briefing for NIAA's senior executive committee described to me by the Chief Lawyer as a chance "to review the documents and ask any questions" before the internal review was finalised and sent to me.

 

To be clear, NIAA was not obliged, under the FOI Act, to consult the ALC again at this stage at all. It did so, I was told, only to honour an earlier undertaking to the ALC. I have no basis for concluding that any of this changed the outcome, and I am not alleging that it did. What I am saying is more circumspect, but difficult to refute: a process that builds in a further hearing for the party under scrutiny, and none at all for the person who asked the question, is not a process most people would recognise as evenly balanced regardless of how the individual officers involved conducted themselves.

 

Nor is it wise in my view for an independent internal reviewer to share her proposed decision (based on her interpretation of the FOI Act) with the agency’s senior management and expect that the agency’s reputation for independent administration of the legislation would not be harmed. As the OAIC website states:

As a merits review process, an internal review is a new decision-making process in which an independent internal review decision-maker remakes the original access refusal or access grant decision (link here, para 9.2).

I responded to the Chief Lawyer and expressed my reservations about this proposed approach and requested a response to my concerns but heard nothing. It is not clear if the Executive Committee were in fact provided with prior access to the internal review decisions.

 

A related and separate issue particularly with more complex FOI matters is that the agency legal unit provides support for both the initial decision maker and the internal reviewer. This too is a potential conflict and also opens the possibility of agencies pursuing strategic behaviour to slow down access, on the basis that more restrictive (and perhaps less justifiable) decisions to refuse access will often not be pursued, and if they are they can be adjusted at a later time.

 

The final agency decisions taken in these two NIAA matters are now before the Office of the Australian Information Commissioner (OAIC). The OAIC is facing considerable delays in processing outstanding FOI issues, especially comparatively complex matters, so I am not expecting a response until early next year.

 

Why this is worth a post on its own

 

None of this, on its own, focusses on what the documents contain. That's deliberate; this post is about the nature of the journey — the conditions of the road, its challenges and mis-directions, its byways and highways — not the destination. But the nature of the journey matters. What is clear from the two cases considered in this post is that the journey has become encapsulated in an administrative labyrinth, designed to minimise transparency, pre-emptively constrain potential criticism, promote secrecy and to disincentive citizens keen to understand the workings of their government.

 

These are issues that are broader than any one agency and emanate from the antipathy of the Executive arm of government to transparency, and its all-encompassing focus on managing the daily news cycle. In today’s public sector, agencies understand this and act accordingly.

 

In relation to the ORIC request, the unfortunate and almost comical accumulation of what I term administrative misadventures points to potential broader issues related to the agency’s capability and commitment to monitoring the governance standards of the corporations in receipt of so-called royalty equivalents under the NT land rights legislation. The Act provides for the payment of ‘affected community’ monies arising from mining on ALRA titled land to be paid to corporations established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) which establishes the Registrar of Indigenous Corporations and ORIC. There is thus an implicit expectation in the ALRA legislation that these corporations will be appropriately governed and that there will be capable (and culturally sensitive) regulatory oversight.

 

It is patently clear that there have been serious corporate governance and accountability issues in relation to the governance of some of the CATSI corporations on Groote, including GHAC, for most of the last decade (link here and link here). This in turn raises the question: how has this been allowed to both occur and persist.

 

Transparency in relation to the adequacy and effectiveness of the regulatory oversight of these corporations (and others elsewhere in the NT in receipt of s64(3) payments) has been minimal. In these circumstances, the defensive and unnerving approach of ORIC to my comparatively simple FOI request suggests that there are underlying issues within ORIC that surely demand attention. This conclusion is reinforced by the matters discussed in my recent post related to the problematic nature of ORIC’s more general regulatory performance (link here).

 

In relation to the NIAA, a request that evolves into two separate requests, that together take the better part of two months to progress past a first internal meeting, that takes seven months to process from initial request to finalisation of internal review, that gives the subject of the documents who have a vested interest in avoiding embarrassing disclosures more opportunity to be heard than the person asking to see them, and that runs a final check past the very executives whose agency's earlier decision is under review, is not a process that inspires confidence in the commitment of the Executive arm of Government to the principles and objects of the FOI Act.

 

Conclusion

 

What these two matters have in common is not just delay and discretion exercised against disclosure, but a recurring willingness to withhold or redact the specific — names, findings, factual detail — in favour of the general. A further post will explore the systemic erasure of the recent history of what has transpired on Groote Eylandt over the past decade and consider how this contributes to making this history unintelligible and thus able to be reframed in ways that shift responsibility and shape the publicly available narrative going forward. A key focus will be to examine one instance of that pattern of erasure in more detail: the treatment, across the NIAA FOI releases discussed here, of the role of the former ALC Chair, the late Mr T. Wurramarrba.

 

At a higher level, both case studies raise the same issue: the public interest is systemically made subservient to the pressures for secrecy, avoiding accountability, and the erection of barriers to the access of information concerning the ways in which governments seek to manage what is, admittedly, an increasingly complex public policy environment. The risk however is that these broader trends increase the risks of corruption arising and spreading. It is no coincidence that the electorates demand for better public governance had been met with the establishment of anti-corruption institutions across most Australian jurisdictions. Unfortunately, nor is it surprising that in doing so, governments have in various ways constrained their remit and hobbled their operations. The experience of the National Anti-Corruption Commission at the Commonwealth level over recent years is a case in point.

 

 In this context, it is worth reminding ourselves of the principles underlying the establishment of the Freedom of Information regime and contemplating whether they have been in any substantive sense achieved.

 

Section 3 of the legislation states (emphasis added):

 

3. Objects—general

 

 (1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:

 (a) requiring agencies to publish the information; and

 (b) providing for a right of access to documents.

 (2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;

(b) increasing scrutiny, discussion, comment and review of the Government’s activities.

 (3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

 (4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

 

 16 July 2026

 Addendum

Please see the subsequent post (link here) for an update and reconsideration of the way that some matters in this post were experessed.

 19 July 2026

This post has been produced with research assistance from Claude Sonnet 5

 

A strengthened Indigenous Procurement Policy: but uncertainties remain

The web of our life is a mingled yarn,

good and ill together.

All's Well That Ends Well, Act four, Scene three.

 

All that glisters is not gold ...

Gilded tombs do worms enfold.

The Merchant of Venice, Act two, Scene seven.

 

From today, 1 July 2026, the Indigenous Procurement Policy operates under tightened eligibility rules. To access Commonwealth contracts, a business must now be 51 per cent or more First Nations owned and controlled or registered as being Indigenous owned by the Office of the Registrar of Indigenous Corporations (ORIC). This raises the threshold for access to the scheme, up from the original 50 per cent ownership threshold that has applied since 2015. A transition year allows firms sitting on the old criteria to adjust. The Commonwealth's purchasing target also steps up, from 3 to 3.25 per cent, on its way to 4 per cent by 2029–30. Minister McCarthy's announcement (link here) leans on a decade of headline numbers: more than 91,000 contracts, over $14.2 billion, some 4,900 First Nations businesses.

On its face, this is the continuation of a policy success story I have followed, on and off, since its early years (link here and link here). The IPP has consistently exceeded its own targets, attracted bipartisan support, and — as I noted when the Indonesia-Australia trade agreement was being negotiated in 2019 (link here)  — proven durable enough that Australian negotiators went out of their way to carve out explicit protection for Indigenous policy measures in an international trade agreement. That is not nothing.

But the reform arrives alongside two bodies of evidence that should temper the optimistic tone of the Minister's release, and that between them go some way to explaining why the ownership threshold, rather than the systemic changes I would argue are necessary, is where this round of incremental policy adjustment has landed.

The first is the ANAO's 2025 follow-up audit of the Mandatory Minimum Requirements, which I wrote about on this blog in some detail last year (link here). I urge interested readers to have a look at that post. The ANAO found that between July 2016 and September 2024, 63 per cent of contracts subject to mandatory minimum requirements (MMR) targets — worth $69.3 billion — were exempted from them, often for reasons NIAA could not adequately explain or assure. NIAA had also quietly cancelled a promised evaluation of whether the MMRs work at all, with no record of who made that decision or why. When the ANAO recommended NIAA assure itself that exemptions were legitimate, NIAA declined, arguing this was a matter for the individual Commonwealth agencies issuing contracts under the devolved procurement framework — an odd position for the agency legislatively tasked with monitoring the effectiveness of Indigenous programs across government, including those delivered by other agencies.

The second is Christian Eva's recent analysis (link here and link here) in the Australian Journal of Public Administration, the first substantial quantitative study of who actually receives IPP contracts. Using FOI data spanning 2015–16 to 2022–23, Eva finds that the policy's aggregate success conceals a striking concentration: half of all contracts over $10,000 went to just 11 firms, and half the dollar value to 18 firms, out of roughly 3,900 businesses cited as beneficiaries. Forty-one per cent of contracts and 30 per cent of value went to firms based in the ACT, where only one per cent of the national Indigenous population reside; firms in the 50–51 per cent Indigenous ownership band — precisely the group the new eligibility rule targets — received the largest single share of contract value, while ownership status for 64 per cent of suppliers could not be verified at all. Eva's broader argument is that the IPP measures itself against volume and value targets that are relatively easy to meet, while leaving largely unexamined whether contracts translate into Indigenous employment, community benefit, or anything resembling Indigenous-defined success.

Read together, these two pieces of evidence point to the same gap: a policy whose headline metrics are exceeded almost by design, sitting on top of compliance and verification infrastructure that neither NIAA nor the available data can currently vouch for. Raising the ownership threshold to 51 per cent addresses the most legible version of "black cladding" — but Eva's own account of the practice describes far more sophisticated arrangements than a bare ownership percentage. Moreover, the announced reform does nothing to address the MMR exemption problem, the absence of an evaluation strategy, or the concentration of contracts among a small, capital-city-based cohort of repeat winners.

There is also a wider governance backdrop worth noting. My recent post on ORIC's regulatory performance (link here) — CATSI corporation reporting compliance has fallen from over 75 per cent to under 30 per cent since 2015–16 — suggests a portfolio-wide pattern of declining regulatory capacity, not something confined to procurement. The NIAA web page describing the current changes (link here) reveals that the NIAA will be outsourcing the verification process, or to use the jargon of bureaucratese:

To implement the strengthened IPP eligibility criteria, the NIAA will soon approach the market to identify a provider to deliver the verification services.

A strengthened eligibility test is only as good as the verification and assurance work sitting behind it, and on current evidence that work is thin.

None of this is an argument against the announced sensible but modest changes, aimed at strengthening the leverage of Indigenous business owners vis a vis potential partners in joint ventures seeking to win government contracts. It is however an argument against mistaking a tighter ownership threshold for a genuine answer to the questions Eva and the ANAO have both now put on the public record: who actually benefits from $14 billion in Indigenous procurement since 2015, and does anyone in government know whether the policy is achieving what it was designed to achieve?

A decade on, with the headline targets rising to 4 per cent, those remain open questions — and the ‘strengthened’ IPP, as currently designed, is not built to answer them. Commenting to the National Indigenous Times last December on the extraordinary expansion of Commonwealth procurement with Indigenous firms, Christian Eva commented (link here):

That's not nothing. But with any Indigenous program at a federal level, we really do need stronger transparency and stronger accountability.

I agree wholeheartedly. But I would sharpen those observations by noting that the announced changes appear to avoid the hard questions such as how to ensure that the Indigenous partners in joint ventures benefitting from the IPP — even when formally in control — are not co-opted or inappropriately induced to participate in business arrangements that allow mainstream businesses to access government contracting opportunities.

Removing these potentialities requires robust and coordinated regulatory oversight that to date has been absent, regular independent evaluations, and an acknowledgment that if the IPP is to be sustained, it must demonstrate that it is benefiting both the interests of First Nations business owners and the public interest more generally. The IPP if well designed and effectively implemented can be win/win; but without rigorous regulatory oversight, it can easily slide into lose/lose.

The record of the development of the IPP is a mingled yarn, good and ill together: the question the Minister’s announcement does not ask, let alone answer, is how much of the gold is real.

 

This post has been developed with the research assistance of Claude Sonnet 5

1 July 2026