Regulatory oversight: the missing element in effective public policy

 

O, it is excellent to have a giant's strength,

but it is tyrannous to use it like a giant.

Measure for Measure, Act two, Scene two

 

Two weeks ago, the Senate Finance and Public Administration Legislation Committee held estimates Hearings where inter alia the NIAA, the Office of the Registrar of Indigenous Corporations (ORIC) and three of the four NT land councils were called to give evidence. The ALC was not called to appear (for reasons that seem difficult to comprehend given the extraordinary delay in the tabling of its annual report (link here) and other unresolved issues that I will endeavour to address in the coming weeks).

However, the high-level issue I wish to explore here relates to the comparative effectiveness of the two primary mechanisms in our system of democratic accountability which are designed to keep the Executive arm of government up to the mark. The first is the Parliament, and in particular the system of Senate Estimates Committee hearings which convene three times a year. The second mechanism is the performance audit function of the ANAO.  The case study which has presented itself to us relates to the effectiveness of NIAA’s and ORIC’s regulatory oversight of the obligations of corporations established and incorporated under the CATSI Act.

These corporations are a major conduit for the delivery of many government programs across the Indigenous policy domain, and are also mandated entities under the NT land rights Act for the distribution of royalty equivalents (under s.64(3), and are the mandated incorporation mechanism for Prescribed Bodies Corporate, the land holding entities which must be established to hold native title on behalf of native title holders. The implicit rationale for these mandates to is to ensure that oversight and regulation is both culturally informed and able to be fine-tuned to meet emerging contingencies and policy needs.

The ORIC website (link here) provides an accessible overview of the numbers and financial significance of CATSI corporations nationally in the regularly updated State of the Sector reports.

Senate Estimates and ORIC

The following extracts are taken from the transcript of the Hearings held by the Senate Finance and Public Administration Legislation Committee on 26 May 2026 (pages 40 to 44) (link here). I have added bold text and cut out irrelevant material indicated by ellipses. Ms Tricia Stroud is the Registrar of Indigenous Corporations, a statutory officeholder within the NIAA portfolio.

Senator NAMPIJINPA PRICE: Given that there are obviously large sums involved when it comes to royalties and compensation, do you think that governance risks are significant in this space? Do you think the act captures all the risk that is involved?

Ms Stroud: I think the basis of our regulatory posture is that corporations, including PBCs, are member owned and controlled. … The two fundamental accountability requirements which we have a focus on and have gone hard on is annual general meetings and annual reporting. That is because the annual reporting is the opportunity each year for members to ask questions, hold their directors to account and understand the finances of their corporation. They can make their own member informed decision about whether they still have trust and confidence in those directors or whether they wish to remove them. That is why we have gone hard on prosecuting corporations that don't hold AGMs and do not lodge reports. Financial reports is where members and common law holders can understand the health of their corporation and how their money is being managed.

….

Senator NAMPIJINPA PRICE: I will go back to you, Tricia. If a corporation does not meet its AGM and annual reporting obligations, which you say you've gone hard on, is it still eligible to receive Commonwealth grants or be successful in tendering for Commonwealth contracts?

Ms Stroud: That would be a question for each of the individual funding agencies. Under the C(ATSI) Act, there's not a direct relationship between non-lodgement of annual reports and non-holding of AGMs with funding. Some funding bodies would have requirements or conditions in their funding contracts that a corporation has to be compliant with its regulator, be it ASIC or ORIC. We encourage funding bodies to always look at the public register when undertaking due diligence of corporations. We publish corporations that have been prosecuted for failing to hold AGMs. There have been two of them in recent years. And there are corporations that have failed to lodge their reports. There have been over 60 of them in the last couple of years. They are published on the website. Funders and donors as well as members and the general public are encouraged to look for those corporation details to see signs that things are not well with corporations that they might fund as well as corporations that we are deregistering. We've recently deregistered 25. This week, we issued notices to over 600 corporations that we intend to deregister them. Again, funding bodies are constantly reminded that the public register of Aboriginal and Torres Strait Islander corporations is the single source of truth in terms of regulatory action and the standards and compliance of a corporation when they are making decisions about funding them.

Senator NAMPIJINPA PRICE: What powers exist for ORIC or the Commonwealth to intervene where there are allegations of serious governance failures, misuse of funds, conflicts of interest, breaches of director duties or failure to comply with C(ATSI) Act obligations?

Ms Stroud: There are a number of powers available to us under the C(ATSI) Act and which we use regularly. They are just basic lines of inquiry when we get a report or concern from a member, a funding body or a member of the public about suspected breaches of the C(ATSI) Act or failings in a corporation. We might make lines of inquiry, noting that we rely on some level of evidence when those sorts of allegations are levelled. Second, we can issue a corporation a notice to produce in which they are required to provide us with documents that might help inform our inquiries around allegations. We can conduct examinations. The final one before there might be regulatory action taken, including special administration, is an examination of the corporation. That is an examination of the corporation's books, which is examining the governance standards and health as well as the financial standards and health of a corporation. There are other powers. There are compliance notices, which isn't always out of an examination. It might be where we have significant evidence that a corporation is not doing the right thing. We issue them with a compliance notice. There is also a power used to call a general meeting. It is a registrar initiated general meeting, where I use my own initiative and powers under the C(ATSI) Act to call a meeting of the members to pass resolutions or to resolve particular issues in a corporation. They are usually around the board and instability or minimum numbers of directors where a corporation is not being governed appropriately.

……

Senator NAMPIJINPA PRICE: Thank you. What safeguards exist to ensure royalty and compensation funds are being used consistently with community developed and economic participation objectives?

Ms Stroud: There's a line between what is a C(ATSI) Act matter and what is a matter under the Native Title Act. Not all native titleholders are members of their PBC. Not being a member of a PBC does not remove your native titleholder rights and interests and obligations on the PBC to make native title decisions largely around compensation funds and your country. A PBC has obligations to native titleholders regardless of whether they are members. Native title consultation and consent processes and native title decisions are not matters which are regulated under the C(ATSI) Act.

The fundamental message here is that ORIC is ‘going hard’ and that by and large, everything is under control. The Registrar has issued notices to over 600 corporations threatening deregistration. We should all sleep soundly at night.

The ANAO and ORIC

This week, the ANAO published Auditor-General Report No.37 2025–26 Performance Audit: Support and Regulation of Indigenous Corporations (link here).

I don’t propose to attempt a summary nor to delve into every detail and revelation in the audit report. Interested readers should peruse it at their leisure. 

One salient set of conclusions struck a chord with me, not just for what they say about ORIC and/or NIAA’s regulatory oversight of CATSI corporations, but for what the conclusions say about the regulatory performance overall of the Indigenous Australians portfolio, and the fact that successive ministers appear to have consistently failed to take their portfolio oversight and management responsibilities seriously.

Here are extracts from three paragraphs in the report dealing with the quality of regulatory oversight, and its obverse, the extraordinary levels of decline in compliance with reporting obligations under the CATSI Act by CATSI corporations since 2015.

To flesh out the text below, I recommend interested readers look at Figure 4.3 on page 74 (of the 76 page) audit report. The graph shows that since 2015/16, there has been a dramatic fall in compliance levels for all corporations from just over 75% to under 30% in 2024/25. For the subset of large corporations, the compliance levels have fallen from over 90% in 2015/16 to around an estimated 65% in 2024/25. This is an astounding decline in overall compliance with the core accountability requirements of the CATSI legislation; the substantial size and sustained trend line revealed within the data points to a systemic and sustained failure in regulatory performance by ORIC, NIAA and successive Ministers.

Below I have pasted an extract from the audit report where the ANAO discusses these shortfalls. As we have come to expect from the ANAO, it is succinct, neutral, anodyne and emotionless. More problematically (in my humble opinion) there is a brief mention, but no real sense of understanding of the real-world implications of the wider disadvantage to Indigenous individuals, families and communities that flow from poor corporate performance. Readers are expected to draw their own conclusions. In addition to the unquantified (and arguably unquantifiable) direct disadvantage to their members arising from poor governance and compliance by corporations, the absence of legislated reporting compliance presumably reflects to an extent the substantive capabilities of the corporations which are failing to comply.

I have deleted footnotes and added emphasis.

24. ORIC undertakes a range of activities that seek to deter non-compliance. Despite these activities, compliance with reporting requirements has steadily declined over ten years for small, medium and large corporations. Fewer than 30 per cent of corporations overall were compliant with requirements to lodge 2024–25 reports by 31 December 2025. Non-compliance with reporting requirements reduces transparency and information for corporation members, communities, creditors, investors and government agencies as well as for ORIC. There is a general lack of evaluation to identify the key drivers of non-compliance to inform risk-based targeted compliance activities and to understand harm caused by non-compliance. ORIC developed a project plan in January 2026 aimed at increasing small corporations’ compliance with reporting obligations. (See paragraphs 4.39 to 4.46)

….

4.41 …. Annual reporting compliance for all corporations when measured as the lodgement of all required reports by 31 December has been in decline since 2015–16 (Figure 4.3). In 2023, ORIC attributed declines in reporting compliance to the COVID-19 pandemic, with an expectation that as business returned to normal corporations would meet their reporting obligations.

4.42 ….. The ANAO estimated the ten-year trend in annual report lodgement rates by size. Figure 4.3 shows that the decline in lodgement has been greater for small and medium-sized corporations, however this occurs for all size types…

….

4.45 Failure to deregister inactive corporations, regardless of whether they hold assets, may create opportunity costs for Indigenous communities as assets are not available for repurposing or continued effective use or may be accruing debt. Failure to deregister may also create an uneven playing field for corporations that comply with CATSI Act requirements.

4.46 Resource Management Guide 128 Regulator Performance states that regulators should embed methodologies to understand the costs, impact and outcomes of regulation and collect evidence of this at a system-wide level, using insights to support and drive improved outcomes. ORIC does not have an evaluation strategy or program to understand whether the appropriate interventions are being used effectively or to understand the relative impact of its activities.

 

Concluding comments

The contrast in the two narratives is striking. The Registrar’s response to the ANAO audit report (see pages 79-82) was unusually robust, pushing back against myriad assessments embedded within the report. Interestingly, it was signed the same day as the Estimates Hearing. While there may be merit in some of the points made, I do not think that the Registrar’s argument that the ANAO assessment based on a ‘linear or formulaic approach to compliance’ is not the appropriate basis for assessing regulatory performance because ORIC ‘considers the unique circumstances of each corporation to determine the appropriate regulatory action’ … I would argue that the Registrar’s argument is flawed insofar as it implicitly ignores the wider impacts such as the signals being sent to other corporations, the expectations in other corporations that are lowered; the precedents set which lower the bar on corporate performance, and the impacts on the regulatory culture within ORIC which makes taking tough decisions harder.

It must be said that the Registrar came into the role in 2022, and clearly inherited responsibility for a regulatory system under serious challenge. While ORIC clearly faces serious problems, they are not all down to the current Registrar.

But at the end of the day, when only 30 percent of corporations are submitting statutorily required reports on time, and the trendline (see Figure 4.3 in the ANAO Report) continues to be downward, the regulator has a problem. In a world where ministerial responsibility means something, so too would the NIAA and the Minister have a problem. Yet apart from a lot of to-ing and fro-ing, ORIC emerged from the latest Estimates hearing largely unscathed. This says more about the effectiveness of the Senate Estimates process than the effectiveness of ORIC.

Of course, regulatory failure is ubiquitous in modern societies. Think of the numbers of speeding drivers who drive irresponsibly and seemingly without an incentive to comply with the road laws. Or the lack of enforcement and low penalties that apply to the sale of black-market tobacco. But over time, without effective regulation, the adverse impacts accumulate and undermine trust in government generally. Arguably, across remote Australia at least, we are approaching a point where the footprint of government is seen as either non-existent or ineffective, or both. I have previously pointed to the low levels of electoral engagement in the NT (link here), another signpost along the highway to a democratic implosion that continues apace across northern and remote Australia, and which perhaps we are now seeing nationally.   

At the end of the day, and notwithstanding its reticence and reluctance to draw conclusions in its reports, the ANAO is far and away a better mechanism for holding agencies (and indirectly ministers) to account. The structural problem with Estimates in my view is that the Government controls the agenda both formally and informally through a range of mechanisms (timetables, a government chair, the ability to distract attention, the ability to hide behind the bureaucracy, and the intellectual chaos that pervades each hearing). If I wasn’t an optimist, my diagnosis would be that Senate Estimates as a mechanism to hold governments to account is in terminal decline and should be put down.

There is an urgent need for a reform agenda focussed on strengthening the arm of the Parliament vis avis the Executive, and as part of this, for a rejuvenation and revamping of Senate Estimates. This would involve, at a minimum, tighter agendas focussed on a smaller number of high-profile issues, the preparation of position papers by a new parliamentary research office, and perhaps even the adoption of a ‘counsel assisting’ to ensure that agencies are truly tested as to their priorities, and the substance of their performance. Institutions such as the ANAO and the NACC should be brought within the ambit of parliamentary control rather than executive control, and funding for such institutions should similarly be proposed and determined by the Parliament and not the Executive.

The fact that ideas such as these have a snowflakes chance in hell of coming to fruition anytime soon tells us all we need to know about the true state of our democracy.

 

10 June 2026

The rough torrent of occasion: new updates from Groote Eylandt

 

We see which way the stream of time doth run

And are enforced from our most quiet there

By the rough torrent of occasion

Henry IV Part 2, Act four, Scene one.

 

Next week will see the Additional Estimates 2025/26 Hearings. NIAA and the four NT Land Councils will appear on Monday, while the other PM&C Indigenous portfolio bodies will appear on Tuesday. The current program suggests that the NT Aboriginal Investment Corporation, otherwise known as Aboriginal Investment NT (AINT) has not been called to appear.

I previously noted (link here) that neither the ALC, nor the AINT and an associated Trust entity, have lodged their 2025 Annual Reports which were due by end October 2025. I subsequently updated that earlier post to report that both entities had been granted an extension to the end of November by the Minister. That extension appears to have been further extended to the end of February. The problem appears to relate to the inability of the ANAO to finalise its audits of these entities; see the relevant correspondence from each entity dated 29 November which was then tabled in Parliament (link here and link here).

Following the early December Supplementary Senate Estimates hearings of the Finance and Public Administration Legislation Committee for the Prime Minister and Cabinet portfolio, Senator David Pocock lodged a series of questions relating to the ongoing accountability vacuum surrounding Groote Eylandt and the operations of the Anindilyakwa Land Council (ALC) and related entities in receipt of section 64(3) royalty equivalent payments sourced from the Aboriginals Benefit Account managed by NIAA.

Answers to those questions have now been tabled:

·         The first, Question # NIAA1817 related to the ALC and the termination of the former CEO (link here).

·         The second, Question # NIAA 1818 related to the financial statements of the Anindilyakwa Advancement Aboriginal Corporation (AAAC) (link here).

·         The third, Question # NIAA1819 related to Aboriginal land rights and regulatory responsibilities (link here).

I don’t propose to summarise the detailed questions nor the answers, so suggest interested readers have a look for themselves. In many respects, the significance of the information provided is in the additional context that it provides rather than in any specific revelations. They provide more pieces in the extensive and complex jigsaw puzzle that is emanating from Groote and reverberating well beyond. For these reasons, and given my longstanding interest in these issues both in their own rights, but also as a microcosm of the wider risks, flaws, and accountability gaps that exist across the Indigenous policy domain, I feel it is incumbent on me to at least point out some of the more salient implications.

In relation to Q#1817, the ALC has very helpfully provided a copy of the letter sent to the ALC Board by the then CEO on 28 September 2024. In the letter, the CEO identified the need to resolve the perceived conflict of interest issue identified in the BellchambersBarrett review (link here) which was finalised in August 2024 as the instigation for his proposal. The review noted (at page 4)

Some conflicts, perceived or actual, are unlikely to be able to be effectively managed, an example being the current dual remunerated CEO positions for ALC and Winchelsea Mining Pty Ltd, noting

·         a public official role (ALC CEO) in comparison to a commercial activity management role (Winchelsea Mining CEO),

·         time and attention needed for both roles, and

·         the ALC makes funding decisions and Winchelsea Mining Pty Ltd is a beneficiary of ALC funding decisions

One intriguing aspect of this imbroglio is that the then Chair of the ALC was in the same conflicted position as Mr Hewitt but was not identified in the Bellchambers report and appears not to have been under the same pressure to resolve his position. This gap reflects the lack of substantive independence in that report.

It is clear that the termination was not instigated by the Board, but what is less clear is whether there was informal pressure on the CEO to resolve the issues from the Minister or NIAA. Certainly, the tone of the letter is entirely equivocal on the part of the CEO. What adds to the likelihood of such an interpretation is the fact that the NIAA injected themselves into the ALC Board consideration, while leaving no trail of file notes nor written briefing for the minister or her office. The fact that the ALC board meeting occurred in the same week as the National Anti-Corruption Commission (NACC) visited Groote merely adds weight to the suggestion that there may have been a sense of panic on the part of the minister about the ongoing tenure of the CEO.

It would be useful if the Estimates Committee was to ask the Minister whether she or her representatives was involved in any communication with Mr Hewitt regarding his tenure prior to the preparation of his correspondence to the ALC in September 2024.

The answers to sub-questions (a), (b) and (c) are intriguing. They list a number of corporations which the ALC provides assistance to in accordance with section 23(1)(ea) of the ALRA, including the various service agreements put in place. However, the list does not include AAAC (which owns the majority stake in Winchelsea mining) and GHAC (which controls and owns the various developments at Little Paradise. As was previously reported to the Senate, these two corporations received $70m in s.64(3) payments directed to the preparation for the Winchelsea mine from the ALC. The former CEO and his spouse provided assistance in person to both these corporations (and it seems likely that ALC staff assisted them in multiple ways) but there appears not to have been a formal decision to assist them by the ALC. See also the last two paragraphs of the answer (page 3 of 23).

The ALC answer to the sub-question at paragraph (f) is entirely inadequate as they fail to answer the question asked and instead provide a detailed workplan (going forward) relating to the revised Finance Audit and Risk Committee. One might surmise that the previous Audit and Risk Committee (which was itself conflicted) did not undertake any oversight of the ALC’s activities under section 23(1)(ea). In relation to the issue of budget cover, while the answer confirms that the ALC received no additional section 64(1) funding form the ABA to cover the termination payment, they do not inform us whether the Minister approved the expenditure of the termination payment as was suggested might be required in a previously released NIAA document.

In relation to Q#NIAA 1818, the answer provided confirms that the Registrar of Indigenous Corporations is pursuing AAAC for its failure to lodge its financial statements in 2024 and 2025, and the corporation is due to appear in a Darwin court on 17 February ‘for failure to meet its reporting obligations’. Given that the AAAC is the owner of 70 percent of Winchelsea Mining, this seems to be a rather ominous development for the future prospects of the company and the mine. I can’t help noting that the failure to lodge financial statements overlaps substantially with the departure of Mr Hewitt and Ms Liu from their involvement on Groote. I have long held the view that the ALC exerted effective control over key organisations operating on Groote. This is further anecdotal evidence consistent with (but not irrefutable evidence of) that view. The recent decision of the Registrar to initiate a financial investigation into GHAC, while providing no information or background to that decision, serves to reinforce this perspective.

It would be useful if the Estimates Committee was to seek further information from ORIC into both these developments, including the background to and terms of reference for the GHAC review and ORIC’s strategy beyond achieving a court conviction against AAAC and its Directors.

In relation to Q#NIAA 1819, Senator Pocock’s question in effect seeks to understand the extent to which the NIAA (and by implication the Minister) has focussed on identifying and managing the financial risks involved in the administration of the Aboriginals Benefit Account (ABA). The answer provided has two levels.

The first level is to seek to deflect responsibility with the statement in the first paragraph which states:

The Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) does not establish a regulatory relationship between the NIAA and Land Councils established under that Act. The ALRA provides the Minister with specified powers and the NIAA supports the Minister in the exercise of these powers, including through the exercise of certain Ministerial powers and functions under delegation [emphasis added].

The first sentence verges on being misleading and the paragraph is an exercise in deflection. The reality is that the Minister has numerous decision-making responsibilities under the ALRA in relation to land councils and other matters, including approval of budgets, allocation of funding amounts, approval of the selection process of land councils, and much more besides. There are around 90 provisions in the ALRA that provide for Ministerial decisions or approvals in relation ot land council matters. The NIAA is the organisational entity within the PMC portfolio which provides technical and policy advice to the Minister in relation to those responsibilities. Further, the NIAA administers the Aboriginals Benefit Account (controlled by Minister) which is the source of virtually all funding for the NT land councils.  There is a requirement for stand alone ABA financial statements and these are published each year an appendix to the NIAA Annual Report (link here). The NIAA directly administer the ABA and itself makes decisions relating to its financial management and the investment of funds (see for example the following extract from the ABA Annual Report for 2024-25 (page 186):

The investment objective of the NIAA as administrators for the ABA is to ensure that the ABA complies with legislative obligations under the PGPA Act and the ALRA, and that the ABA maintains and preserves its capital base [emphasis added].

The claim that the NIAA has no regulatory role vis a vis the land councils, and the ALC in particular,  does not accord with the fact that the NIAA attended the ALC meeting which terminated the former CEO, commissioned the Bellchambers Review subsequent to the critical ANAO report in 2023, and has been directly involved in the implementation of the governance conditions imposed by the Minister in late 2024.

The second level of the answer is the recounting of the various minutes of the NIAA Audit and Risk Committee over the five years. These record the ARC consideration the financial statements for the ABA (as part of the broader annual finalisation process for the NIAA financial statements). These ARC considerations are high level and for the most part are formalities. The answer provides no information in relation to any discussion by the Risk and Operations Committee, and we can only assume that they have not in the last five years considered risks in relation to the ABA and the operation of land councils. The answer does mention a discussion in the ARC on 30 August 2025 where the minutes state (according to the answer provided to Senator Pocock):

The Financial Statements for ABA are audited; however, the Committee does not receive regular reports as part of the CFO report. The ABA is not an entity but is required under provisions of the Aboriginal Land Rights Act to publish a set of financial statements. Once payments are made by the NIAA to the various Land Councils and to the Aboriginal Investment NT agency the responsibility for accountability and oversight transfers to those PGPA entities. There are some legacy grants which continue to be paid from ABA and administered by NIAA.

Again, we have the denial of responsibility discussed above. NIAA can attempt to dance on a semantic and legal pinhead, but the political and policy reality is that under the Westminster principles, the Minister is responsible, and the NIAA is the Minister’s primary adviser on her legislative and policy responsibilities. Those responsibilities include the ABA and the ALRA, and the ALC and ORIC.  

For the NIAA to assert that they have no oversight responsibilities over the land councils when the Minister clearly does have those responsibilities is not only in my view incorrect but is of itself a damning indictment of how the wide-ranging imbroglio and fiasco on Groote Eylandt was allowed to progressively emerge and run unimpeded for over five years.

 

 

6 February 2026

 

 

 

FOI updates on the ALC and Groote Eylandt

In natures infinite book of secrecy

A little I can read.

Antony and Cleopatra, Act one, Scene two.

 

FOI revelations. The NIAA FOI log contains two recently released documents that expand the information available in the public domain albeit only at the margin. I have also had access to documents released in response to a third FOI but not yet made available on the Disclosure Log. In this post, bolded text has been added by me to emphasise matters of particular salience to the arguments made here. The highlights below were highlighted in the documents provided by NIAA.

Request One FOI/2425/039 dated 30 January 2025 (link here).    This request sought the NIAA’s proposed response to a series of questions on notice from Senator Pocock in late 2024 (which had presumably been delayed in the Minister’s Office and not seen the light of day when the request was made). Once made available, it revealed that the NIAA’s Group Manager Integrity had attended the ALC Board meeting on 16 October 2024 ‘to support Board discussion regarding Mr Hewitt’s employment arrangements.’  The ALC terminated the CEO’s employment at that meeting. NIAA failed to respond substantively to the Senator’s request for information on what legal or policy advice had been provided to the ALC Board by the NIAA attendee.

Request Two FOI/2425/065 dated 14 April 2025 (link here).  This request relating to the February 2025 Senate Estimates hearings (link here) sought All briefs prepared by the agency for the Minister, her staff, senior staff of NIAA, and other Ministers or portfolio agencies which relate to the governance and operations of the Anindilyakwa Land Council, associated corporations in receipt of royalty equivalent payments, the proposed Winchelsea mine, the 2023 ANAO Audit of the ALC; the National Anti-Corruption Commission investigations in relation to Groote Eylandt matters; and/or Groote Eylandt generally."

The response comprised two documents prepared in February 2025. The first document included the following dot points under Key Talking Points:

·       The Ministerial response to the petition was tabled on 29 February 2024. The response states that the Minister has referred the issues raised in the petition and media articles to the NIAA’s Integrity Group for review and referral to relevant Commonwealth and Territory agencies if required.

·       The NIAA received some information that was subsequently referred to the National Anti-Corruption Commission (NACC).

·       As part of NIAA’s response, the NIAA commissioned an independent review of the ALC’s responses to the issues and recommendations of the ANAO audit.

In a section headed ‘If asked: What is NIAA doing to address the concerns in relation to ALC governance?’, the brief discussed the Bellchambers Barrett Review, referring to it as ‘independent’, and confirming that that the Group Manager Integrity had determined the scope and composition the review. 

The brief then states:

• The ALC CEO and Board fully cooperated with this independent review….

• In my capacity as NIAA Integrity Group Manager, I accompanied the independent reviewer to Groote Eylandt on 27 and 28 May 2024 to gather additional evidence and meet with the ALC Board and management.

• On 24 Sepember [sic] 2024, I also attended Groote Eylandt to provide the newly elected ALC board members a walkthrough of the issues review report.

• On 15 and 16 October 2024, I attended Groote Eylandt to work with the board members to support their next steps in progressing the governance arrangements of the ALC board.

A second document was the brief prepared for the NIAA CEO.

The CEO brief confirms that the ALC has engaged Yamagigu Consulting to act as Independent Adviser to the ALC Board and to develop a governance framework in consultation with the NIAA. Yamagigu is associated with Deloitte Australia.

The CEO Brief states:

·       The August 2024 Bellchambers Barrett review concluded that while significant progress has been made by ALC since May 2023 across the ANAO’s 15 recommendations, none had been fully implemented.

·       The Minister wrote to the ALC Board on 29 August 2024 to advise she was extremely disappointed to read the review’s conclusion.

In a section headed Former Chief Executive Officer Mark Hewitt, the Brief notes:

• The ALC Board terminated the employment of Chief Executive Officer (CEO) Mark Hewitt on 16 October 2024 ….  

• The termination payment made to Mr Hewit [sic] was in accordance with his contract of employment and provisions of the Fair Work Act 2009.

o If asked: Did the Minister approve the termination payment?

o [placeholder - brief was provided to the Minister for approval in February 2025].

• The CEO’s tenure had been a matter for the ALC’s Board.

• The NIAA is aware of public concerns that Mr Hewitt allegedly misused royalties and directed funds into a mining company in which he is a director.

• The NIAA referred the former CEO to the National Anti-Corruption Commission (NACC) in July May* 2024. [*Correction made by NIAA FOI Team]

Request Three FOI 2425/066 dated 19 May 2025. This request sought briefing notes and associated file notes and records related to the attendance by NIAA officers at the ALC Board meeting in mid-October 2024 and all records of communications with the Minister or her Office in relation to the attendance at the ALC meeting or in relation to discussions with Mr Hewitt. Six documents were identified as being within the scope of the request. Access to three (documents 1, 2 and 4) was refused in full on the basis that they were legal advice that was subject to legal professional privilege. The remaining documents were released in part. Extensive sections were redacted on the basis of personal privacy exemptions.

Document 3 was an email to either the Minister’s Office or senior NIAA officers dated 18 October 2024 advising inter alia that the ALC had terminated the CEO and had appointed the ALC’s Chief Financial Officer Colin Wakefield as interim CEO.

Document 5 is an email trail dated 5 November 2024 beginning with a request for a brief to support a meeting between the Minister and the ALC the following day. NIAA’s Group Manager Integrity provided a series of talking points under the heading Update on ALC CEO status. After listing the date of the termination, the appointment of an interim CEO and the ALCs intention to appoint a recruitment firm, the brief stated:

·       As part of the termination process, Mark has resigned from the positions of Executive Director Groote Holdings Aboriginal Corporation (GHAC) and CEO of Winchelsea Mining

·       The Boards of GHAC and Winchelsea are considering next steps following Mark Hewitt’s termination, including engagement of an independent advisor to assess current operations and the required way forward.

Document 6 is a NIAA brief to the Minister dated 25 October 2024 responding to the ALC Chair’s correspondence dated 16 October advising that the Board had terminated their CEO. Under a heading Key Points, the NIAA noted that the Chair had advised that the CEO had been terminated ‘on notice’ by the ALC and that the ALC Board had been considering Mr Hewitt’s position for some time. The brief then stated:

5. It is understood ALC will be submitting a supplementary budget request shortly to cover Mr Hewitt’s final entitlements.

 

Commentary on FOI documents released:

What jumps off the page in the documents provided in response to Request One is the determined effort by both the Minister and NIAA to keep the Minister at arm’s length from whatever is going on. This signals, in turn, either prior knowledge of misfeasance within the ALC, a statutory corporation in the Minister’s portfolio for which she is responsible, or an appreciation that the events unravelling on Groote and within the ALC were in some way potential political time bombs.

At least two other issues arise from the Request One documents. First, the close involvement of the NIAA in the Bellchambers Barrett Review – which as I have pointed out previously was focussed solely on the ANAO recommendations and not on the detailed issues identified - (including collecting evidence) and the ‘cooperation of the ALC CEO and Board’ raise serious questions regarding the Review’s independence.

The second issue concerns the reason for the Group Manager’s attendance at the Board meeting. In the response to Senator Pocock’s questions, it was stated that it was ‘to support Board discussion regarding Mr Hewitt’s employment arrangements.’ In the Estimates brief, it was ‘to work with the board members to support their next steps in progressing the governance arrangements of the ALC board’.

The visit took place in the context of a series of previous events: the prior visits to Groote by the Group Manager; a letter from the Minister to the ALC expressing her ‘extreme disappointment’ in relation to the poor ALC response to the Review that her agency had been involved in developing for months; the referral by the NIAA of the former CEO to the NACC four months previously. The visit coincided with the NACC attendance at the ALC Office on Groote to obtain evidence. Given NACC protocols to allow it to work with Commonwealth agencies on investigations, it is possible that the NIAA had been provided with progress reports by the NACC. The differences in the explanations set down in the two documents, although nuanced and not definitive, point to something more than NIAA engaging in a purely passive support role. Why else would legal advice have been necessary (bearing in mind that the ALC employs its own legal advisers)?

The complete absence of any preparatory briefing (except perhaps the emailed legal advice), as well as the absence of any file notes recording the ‘support’ offered by the NIAA officer suggests a deliberate effort to avoid future scrutiny and serves to reinforce the sensitivity (and potential irregularity) of the discussions. This is the bureaucratic equivalent of a police officer turning off his/her bodycam prior to engaging with a person of interest.

The Request One CEO Brief (document two) confirms that notwithstanding NIAA’s awareness of allegations that ‘Mr Hewitt allegedly misused royalties and directed funds into a mining company in which he is a director’, and their decision to refer the CEO to the NACC presumably in relation to at least these allegations, the ALC decided to pay Mr Hewitt an unspecified termination payment and the Minister appears to have been asked to approve that payment in February 2025. This strikes me as unusual insofar as if it was entirely consistent with the CEO’s land council employment contract and assuming that the contract which has never been made public adheres to standard employment practice), there would have been no need to obtain the Minister’s approval. On the other hand, if the ALC proposed to pay any amount related to his termination as CEO of GHAC and/or Co-CEO of Winchelsea Mining, the ALC may well have found it necessary or convenient to seek ministerial approval for an expansion of its section 64(1) operational budget approval or for an approval under section 36 of the ALRA (link here). I have previously argued that the former CEO’s simultaneous roles constituted misfeasance insofar as the ALC CEO salary set by the Remuneration Tribunal is for a full-time position, and it seems unlikely that the Tribunal’s approval was sought and granted for the CEO to engage in additional paid employment.

The fact that the document 5 of Request Three makes clear that the Mr Hewitt resigned from his roles on Winchelsea and GHAC ‘as part of the termination process’ adds to the likelihood that the Minister was made aware of and agreed to termination payments for Mr Hewitt linked to a notice period for these roles. Importantly, the apparent willingness of the ALC to intrude financially into the internal affairs of GHAC and AAAC/Winchelsea Mining (apparently with the tacit assent of the NIAA)  also reinforces the argument I have made on numerous occasions that the ALC exercises effective control over these corporations through the allocation of section 64(3) payments and is thus in effect allocating royalty equivalent funds to itself in contravention of the intent of the ALRA.

The CEO Brief also confirms that NIAA’s referral to the NACC was in May 2024, a year after the ANAO report was issued. The allegations mentioned above that likely formed the basis for the NIAA referral of the then CEO to the NACC were two of numerous concerns described in the ANAO performance audit over a year before the referral. Why then did it take a year for the Minister and NIAA to make the referral? And what changed to persuade them to act in May 2024?

As I have long argued in my posts on this blog, there appears to have been a deliberate and sustained attempt by NIAA and the last two Ministers to ignore and downplay the concerns raised by the hundreds of signatories to the February 2024 petition to Parliament and the numerous serious issues raised by the ANAO report. Whether intentional or not, it amounts to complicit behaviour with respect to these issues. As mentioned above the tactic adopted was to establish a review that focussed solely on the ANAO recommendations, and to ignore the myriad concerns and red flags raised in the detail of the 2023 ANAO report. What is less clear is why this policy of regulatory neglect was pursued.

I have long taken the view that not only were there shortcomings in the ALC’s management processes, but that the NIAA and its ministers have failed in their role as the ‘regulator’ oversighting the operations of the ALC and particularly its royalty and royalty equivalent distributions.

The unexplained termination of the ALC’s CEO in October 2024, the determined efforts of all involved to downplay those events, the complete absence of any justification or rationale form the ALC, and the secrecy imposed until now on the termination payments made to him notwithstanding the concerns that were significant enough to underpin a yearlong investigation by the NACC, suggests that there is much more to this than is currently available on the public record.

One hypothesis that is consistent with the facts as we know them is that the Government decided (utterly belatedly) that the ALC should terminate the CEO to set up a situation where a potentially adverse NACC report could be defended with the blithe response that the individual responsible for whatever egregious flaws are determined to have existed has already been dealt with. Persuading the ALC would be simple: the Minister had the leverage of only partially approving the ALC’s budget for 2024/25 as well as numerous ways in which to make the land council’s ongoing operations difficult. Persuading the former CEO (and his spouse) to depart quietly would be trickier. The offer of generous termination payments would assist, but other inducements are also conceivable. In this scenario, the ongoing silence of the terminated CEO would be more securely achieved if the termination payments were accompanied by a formal non-disclosure agreement.

Concluding comment

In my view, the pervasive veil of secrecy that has been thrown over this whole episode would be necessary only if the decisions taken were not able to be justified according to law and were not able to meet the so-called ‘pub test’. The fact that questions from Senator David Pocock have been ignored or answered with misleading diversions serves to emphasise the determination of the Commonwealth to avoid public scrutiny. The fact that the veil of secrecy remains substantially in place merely reinforces doubts regarding the appropriateness and propriety of the actions (and inactions) of ministers and the NIAA related to the oversight of the ALC over the past decade.

The issues and concerns raised by the ANAO and by the concerned community members who signed the 2024 petition to Parliament are yet to be addressed in any rigorous and comprehensive way. The fact that the NACC is investigating unspecified matters without any transparency in relation to the focus of its investigation is no substitute for an open, transparent and rigorous examination of what has transpired.

Unfortunately, the reluctance to initiate such a forensic and strategic review appears to be an essential element of the Commonwealth’s approach to the operations of the ALC (and also reinforces the likelihood that the hypothesis outlined above is in play). This means that we are reliant on the efficacy of the various accountability institutions with a role on Groote to ensure that the systemic issues that allowed the imbroglio on Groote to emerge and to flourish are identified, and curtailed. I don’t see the NACC as the institution best placed to address these systemic issues (though I hope they at least go some of the way to doing so).

The ANAO in my view should step up. It could undertake a follow up report to its 2023 performance audit. It might also take a long close look at the issue of the effective control by the ALC over the corporations involved in the Winchelsea mine and the Little Paradise infrastructure hub, and which are in receipt of ongoing and significant flows of royalty equivalents. A decision to qualify the annual financial statements of the ALC (and the concomitant ramifications of such a decision) would go a long way to addressing the systemic defects in the current sector wide administration of the ABA and ALRA.

 

25 June 2025