Bemusement and bewilderment: why the secrecy with the ALC?

 

Confusion now hath made his masterpiece!

Macbeth, Act two, Scene three

 

In late September 2025, I lodged an FOI request with the NIAA and indirectly the Minister for information related to some elements of the circumstances under which the former CEO of the ALC, Mr Mark Hewitt was in October 2024 terminated by the Anindilyakwa Land Council (ALC) and his contract paid out. As I noted in a previous post (link here) the ALC, advised and assisted by a senior NIAA officer, and without its own legal officer in the room, decided to terminate Mr Hewitt, agreed to pay him a termination payment that was estimated to total around $500,000, and in its formal decision gave no reasons for the termination. Neither the ALC nor the Minister for Indigenous Australians announced the termination and virtually all references to Mr Hewitt were deleted from the ALC web page.

Set out below are extracts from a letter recently received from the NIAA in relation to an ongoing FOI request lodged in late September:

Dear Mr Dillon, Freedom of information request - FOI/2526/015

1. I refer to your request dated 29 September 2025 to the National Indigenous Australians Agency (NIAA) under the Freedom of Information Act 1982 (FOI Act) for access to the following documents: “

1. Any documents held by NIAA or the Minister referencing any request by the Minister or her Office relating to the tenure of the employment of Mr Hewitt by the ALC.

2. Any documents including correspondence, emails, texts or file notes of phone conversations between the ALC and the Minister, her Office and/or the NIAA that (a) advise the Council’s decision to terminate the former CEO; or (b) provide or reference reasons for the decision to terminate Mr Hewitt’s employment; or (c) deal with the administrative and financial arrangements for the departure of Mr Hewitt and /or his spouse, or (d) relate to the next steps in relation to filling the CEO position or Ms Liu’s employment within the ALC, AAAC, or Winchelsea Mining Corporation.

3. Any briefing or advice to the Minister or her Office from NIAA (or other agencies) relating to the processes surrounding Mr Hewitt’s termination or to the arrangements for handling his exit from the ALC.

4. Any briefing or advice from NIAA to the Minister or her Office related to either the approval of ALC Budget cover or the approval of funding for termination payments relating to Mr Hewitt and/ or his spouse.

5. Any documents signed by the Minister or her delegate related to the financial and other arrangements associated with the termination of employment of Mr Hewitt and his spouse from employment with the ALC, associated Aboriginal corporations and/or Winchelsea Mining Corporation.” …

3.  I am writing to advise you of my decision that you are liable to pay a charge in respect of the processing of your request. My preliminary assessment of the charge you are liable to pay is $181.40. A 10% deposit of $18.14 is payable….

5. In accordance with section 29 the FOI Act and the Freedom of Information (Charges) Regulations 2019 (Charges Regulations), a charge can be imposed in respect of a request for access to documents under the FOI Act. The charge is for the search and retrieval of documents, decision making and provision of access to documents. Payment of the charge does not guarantee access to the requested documents.

6. I have assessed the work the NIAA would need to do to process your request and have calculated the breakdown of charges set out at Annexure A [not included in these extracts]…

8. I note that in your request for documents, you requested that any charges for processing this request be waived on the grounds of public interest. You specifically referred to “the importance of probity, transparency and accountability in decision-making relating to the appropriate use of financial allocations governed by the Aboriginal Land Rights (Northern Territory) Act 1976 and the Public Governance, Performance and Accountability Act 2013”.

9. Notwithstanding this waiver request, I have decided to impose charges for the processing of this FOI request.

10. In making the decision to impose charges, I accept your contention regarding the importance of probity and transparency. However, I consider that it remains appropriate to impose a charge for the processing of the request.

11. The imposition of a charge in these circumstances reflects the work associated with processing the request, as well as the administrative burden placed on third parties to review documents which they are consulted on….

17. You have 30 days to respond to this notice in writing.

18. You may choose to: • pay the deposit amount or the full charge amount, and notify the FOI Coordinator in writing, • contend the charge has been wrongly assessed, or should be reduced or not imposed and explain your reasons, or • withdraw your request….

30. In accordance with section 31 of the FOI Act, the period for processing your request stops from the date you receive this notice until:

• the day you pay the charge (the deposit amount or the full charge),

• if the amount of the charge is changed following review under the FOI Act, the day you pay the revised charge (the deposit amount or the full charge), or

• if a decision is made not to impose a charge following review under the FOI Act, the day you are notified of the decision….

Kind regards, Sean Worth

Group Manager Integrity Group 16 December 2025

Yesterday, I paid the fees, admittedly feeling a degree of incredulity. I sent an email confirming the payment to the NIAA FOI team, and included the following text in the email:

Good afternoon FOI team

I have paid this fee in full.

Let me for the record register my bemusement and bewilderment at the way in which my request for fee waiver on the grounds of the public interest in transparency and accountability over matters involving substantial sums of taxpayer funds was cursorily dismissed by the decisionmaker. 

I acknowledge of course that the imposition of fees is provided for in the Act and regulations, but I also note that it can be used to deter citizens from pursuing access to information, and that this would not be in the public interest. Unfortunately, such deterrence appears to be de rigeur within the Commonwealth especially in circumstances where ministers or senior officials appear to be potentially subject to embarrassment. 

In this context, I can't help but remind you that section 3 of the FOI Act 1982, which sets out the objects of the legislation provides (emphasis added) in subsection (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.

and in subsection (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.

I would hope that you would give serious consideration to the damage that is being done to the reputation of the public service and the NIAA in pursuing this course of action as a general policy. 

You have my permission to pass these comments on to the decision maker, the NIAA CEO and indeed the minister

Sincerely michael dillon

Conclusion

In the scheme of things, recounting this skirmish in the transparency war over the as yet unresolved events on Groote is of little consequence. I have decided to publish it because it is indicative (yet again) of the lengths to which the Commonwealth will go to avoid coming clean on what has transpired on Groote Eylandt over the past decade.

I responded with bemusement and bewilderment, because the NIAA has regulatory responsibilities for the Aboriginal Land Rights (Northern Territory) Act 1976, the Aboriginals Benefit Account and the Land Councils established under the legislation. On Groote Eylandt where the Anindilyakwa Land Council operates, there are increasing indications that the problems first identified by the ANAO in May 2023 will ultimately lead to significant misallocations, and potentially losses, of many millions of dollars of royalty equivalent payments intended to benefit traditional owners and other community members affected by mining (link here), and there are still questions unanswered in relation to very significant sums of royalties paid to the Anindilyakwa Mining Trust and later transferred to a local corporation, but apparently not received by that corporation (link here). Or even more pointedly, when a senior NIAA officer attends the ALC Board meeting which decided to authorise a termination of the former CEO with associated payments estimated at $500,000 for reasons neither he nor the ALC Board is prepared to reveal publicly, the NIAA can’t see a problem. Nothing to see here!

Yet when an engaged citizen, taxpayer and policy analyst seeks to exercise legislated rights under the FOI Act, the NIAA sees fit to exercise its discretion to charge me $181.40. Am I expected to sleep soundly tonight secure in the knowledge that the FOI regulations are being administered by NIAA without fear or favour?

The endemic lack of transparency, and the extraordinary efforts the Commonwealth makes to keep the lid on the bubbling cauldron serves to add to the confusion that seems to pervade every aspect of the issues involving the ALC on Groote Eylandt.

One is left wondering, just what is it that the Commonwealth has to hide given the continuing and sorry cascade of unanswered questions, dubious decisions, deliberate distraction and incessant obfuscation?

 

18 December 2025

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

Closing the Gap: rhetoric trumps substance

 

I have recently published two CAEPR Discussion Papers on Closing the Gap.

 

The first, titled The first decade of Closing the Gap: What went wrong? (link here), deals with the initial phase of Closing the Gap from 2008 to 2020. This phase extends from the announcement of the new policy architecture for closing the gap by the Rudd Government, established under a COAG agreement known as the National Indigenous Reform Agreement (NIRA), through to its expiry in 2018 -2020.

 

The second Discussion Paper, titled The new policy architecture for Closing the Gap: Innovation and regression (link here), covers the second ‘refreshed’ phase of closing the gap established under the National Agreement on Closing the Gap (link here) promulgated in July 2020.

 

The first Discussion Paper demonstrates how LNP Governments from 2013 progressively dismantled and/or defunded the various National Partnership Agreements that were encompassed by the NIRA, based on an examination of key high level evaluations and reviews, and importantly, on a ‘review’ of the NIRA commissioned by COAG obtained, after extensive effort, under FOI (link here). The key point here (confirmed in the NIRA review prepared by Government officials and endorsed by the Joint Council on Closing the Gap) is that from 2013 onwards, while Prime Ministers stood up each year and delivered heartfelt reports to the Australian people and parliament on closing the gap, the overall funding allocated in phase one was progressively cut back and not renewed as appropriations ended.

 

See this earlier post for an account of the reasons the document was initially refused in full (link here). Following an appeal to the Australian Information Commissioner, and the preparation of multiple submissions countering the agency’s blustering, the Department finally released the document in full in November 2020, in advance of a pending decision by the Information Commissioner. The 15 months delay between the original request (in August 2019) and the release was justified by the agency on the basis that changed circumstances meant that it was no longer not in the public interest to refuse access. I for one was not persuaded by the agency’s rationales, both in refusing access initially, and releasing later in advance of the Information Commissioner review.

 

The second Discussion Paper critically analyses the policy architecture put in place by the ‘refresh’ process which was based on a codesign process with the Coalition of Peaks, comprising over 50 Aboriginal and Torres Strait Islander community-controlled peak and member organisations across Australia. After describing the processes leading up to the negotiation of the new National Agreement on closing the gap, the analysis discusses the relevant academic literature and critically assesses the implementation risks that could undermine the success of the second phase of closing the gap. Those risks are more than substantial. The Discussion Paper then outlines a series of further reforms that might  be considered to address those risks.

 

While each Discussion Paper stands on its own, they are complementary insofar as they are chronologically sequential. The evidence shows that the LNP Government has for eight years cut or failed to renew financial resources directed to closing the gap. Over time, these decisions effectively eviscerated the capability of the initial policy architecture to gain traction. Looking forward, the LNP Government has deliberately shifted responsibility for much of the heavy lifting to the states and territories, and allocated what can only be described as a miserable contribution going forward (link here). In the future, any shortfall in meeting the Closing the Gap targets will be primarily the fault of the states and territories. Over the past eight years, the Opposition ALP, and to a lesser extent the Greens, appear to have run dead on these steadily accumulating incremental cuts, preferring to score vapid political points rather than mount a sustained campaign directed to holding the LNP Government to account for its (deliberate) policy failures. In these circumstances, the likelihood that the nation will get serious about closing the gap and make a substantial difference in the near future seems remote. Only sustained and effective political pressure will change this pessimistic reality.

 

I hope these Discussion Papers will go some way to highlighting the ways in which governments are failing not only First Nations, but the nation as a whole, and consequently, point towards strategies that might ultimately take us out of the wilderness. While the issues are articulated in bureaucratic and technical terms, the outcomes on the ground are measured in shortened lifespans, reduced educational opportunities, increased family violence, increased incarceration, increased out of home care, higher rates of mental illness, higher unemployment, and significantly reduced life opportunities. To some, this may sound like ‘deficit discourse’, but my point is that these outcomes are real and they are clearly and demonstrably a function of the lack of substantive policy and political commitment by governments and the political class generally.

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

                                                                ‘In nature’s infinite book of secrecy

A little I can read’

Antony and Cleopatra

Act One, scene 2

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

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

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

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

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

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

OFFICIAL

FOI/NIAA/1920/023/IR

FREEDOM OF INFORMATION ACT 1982

REQUEST BY: Michael Dillon

DECISION BY: Group Manager (name and position redacted)

NOTICE OF INTERNAL REVIEW DECISION

Dear Mr Dillon,

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

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

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

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

Authorised decision-maker

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

Matters Taken Into Account

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

• the FOI request;

• the document relevant to the FOI request;

• your correspondence of 26 September 2019;

• the FOI Act; and

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

Decision

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

Reasons

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

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

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

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

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

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

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

Public interest

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

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

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

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

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

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

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

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

Factors favouring disclosure

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

• promote the objects of the FOI Act;

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

• promote effective oversight of public expenditure.

Public interest factors against disclosure

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

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

• would restrict the candour and utility of future discussions;

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

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

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

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

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

Section 47C of the FOI Act – deliberative processes

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

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

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

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

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

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

Public Interest

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

Factors in favour of disclosure

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

• promote the objects of the FOI Act;

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

• promote effective oversight of public expenditure.

Factors against disclosure

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

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

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

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

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

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

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

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

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