This is as strange a maze as e'er men trod,
And there is in this business more than nature
Was ever conduct of. Some oracle
Must
rectify our knowledge.
The Tempest, Act five, Scene one
Readers
of this Blog will know that several of my posts, especially those related to
Groote Eylandt, are based on documents obtained under the Freedom of
Information Act 1982 (FOI Act). However, I usually pass over the details of
the efforts required to obtain them. This post is a brief corrective: not an
argument about what the documents show, but an account of the processes by
which they arrive or don't, or arrive late, or arrive redacted, often for
reasons that are flimsy and don’t stand up under closer scrutiny.
To
enhance readability, I have kept this post reasonably brief and mostly free of
legal argument. A second post, to follow shortly, will address the substantive
implications of the emergence of a wider pattern of systemic opacity and often
unnecessary secrecy. This post is intended to lay the groundwork for that
further post currently in preparation.
Two
agencies, same texture
Over
the past several months I have had live FOI matters running simultaneously with
the National Indigenous Australians Agency (NIAA) and the Office of the
Registrar of Indigenous Corporations (ORIC). Both related to aspects of the
administrative and accountability crisis that has engulfed the ALC and the distribution
of royalty equivalents on Groote Eylandt. The two are different agencies
handling different requests, with no reason to expect their conduct to resemble
one another. And yet….
With
ORIC, a decision on my request for documents relating to an examination of
Groote Holdings Aboriginal Corporation (GHAC) was made on 21 May 2026. I did
not receive it. I chased it seven weeks later, on 13 July, and was told the
email had simply been erroneously misaddressed. Fair enough; mistakes happen.
What doesn't simply happen is a second failure sitting behind the first: under
section 11C of the FOI Act, agencies are required to publish released documents
to a public Disclosure Log within ten business days of giving access. That
hadn't happened either. When seven weeks on I asked why, the answer I was given
that the decisionmaker had decided to not publish the released documents based
on her view that ‘they contain business information of third parties that would
be unreasonable to publish’. Coincidentally, she had omitted to include the
standard paragraph used by ORIC in statements of reasons relating to the
publication (or not) on the Disclosure Log. To its credit, ORIC apologised for
this oversight. More seriously, the response cited the wrong subsection of the
Act to explain it, and even had they cited the correct section, the facts are
not consistent with the rationale communicated to me. The only information
released relating to the business information of a third party was the business
address of GHAC, which is in fact published on the ORIC website.
So,
in addition to missing the statutory timeframe for responding to my request, my
queries unearthed two further apparent administrative mistakes, namely the
failure to publish the released document and to inform me of their decision, and
the apparent decision to base it on a reason that doesn’t stand up. I say apparent decision because
notwithstanding seeking confirmation that there is written evidence of the
decision maker's decision, the response received has consistently pointed me to
the internal review processes applicable under the Act. To be fair, ORIC's most
recent correspondence was accommodating on one point: rather than treating the
misaddressed email as having started the clock on 21 May, it confirmed I could
use my actual date of receipt, 13 July, as the start date for seeking internal
review. That is a reasonable position, and I record it as such. The broader
problem remains, however, that an internal review deals with the decision's
correctness under the Act and is not directed at the quality of the processes
used to make that decision.
There
are issues with the substantive correctness of the decision to withhold the entirety
of the investigation report totalling around 90 pages. The decision maker decided
to redact the entire document on the basis that section 47E(d) of the FOI Act
conditionally exempts documents where disclosure would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency (namely ORIC). The FOI Act provides that
conditionally exempt documents should be
released ‘unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest’. The decision maker is
required to balance the factors for and against release. To assist decision makers,
the Act lists a range of factors that favour access including whether access to
the document would do any of the following:
(a) promote the objects of this Act… ;
(b)
inform debate on a matter of public importance;
(c) promote effective oversight of public
expenditure;
The
decision maker made no direct mention of these factors in making her decision,
but it is a balancing process and will need to be determined through a future
review process if access is to be made available. Such a process or processes
would inevitably involve significant further delays.
With
NIAA, the sequence has been longer and, in its way, more instructive.
On
23 December 2025, NIAA issued its decision on my request FOI/2526/013 which I
made on 24 September 2025, and which focussed on the ministerial approvals
underpinning the Winchelsea mine. The initial decision on FOI/2526/031 was
released on 16 March 2026. I previously published two posts based on these documents
(link
here and link
here). The material released in the
first request comprised a lengthy set of documents, redacted in multiple places.
On 13 January 2026 I lodged a detailed request for internal review, running
across five separate grounds: missing documents, and three different exemption
claims I considered wrongly applied. I noted that the documents released
referenced two documents that had not been included in the original release and
appeared to come within the terms of my request. NIAA agreed and for technical
reasons suggested that I agree to them being considered as a new request for
access. This became FOI/2526/031.
Nothing
happened, at least not visibly, for some time. I later learned why. Both the
original decision-maker and the internal reviewer were on leave for the first
fortnight after I lodged my request. The FOI team's first substantive
discussion of my contentions took place on 27 January 2026, more than a
fortnight after I'd made them, and only days before the statutory deadline for
a decision. That deadline was, in the event, missed. NIAA applied for, and was
granted, an extension and, to its credit, told me so directly and
apologetically.
What
happened next is worth focussing on. NIAA's Chief Lawyer emailed to explain
that the internal reviewer had tentatively formed the view that some of the
original redactions should be lifted, but before finalising that view, wanted
to give the Anindilyakwa Land Council (ALC) a further opportunity to comment.
The ALC is not a disinterested bystander in this material; it is the entity
whose own conduct much of it describes. It was given eight days to respond to
an 83-page document package. I had made my own submissions three weeks earlier
and would get no further opportunity to respond to whatever the ALC put forward
in reply. And once the internal reviewer's decision was made, it would then go
to a briefing for NIAA's senior executive committee described to me by the
Chief Lawyer as a chance "to review the documents and ask any
questions" before the internal review was finalised and sent to me.
To
be clear, NIAA was not obliged, under the FOI Act, to consult the ALC again at
this stage at all. It did so, I was told, only to honour an earlier undertaking
to the ALC. I have no basis for concluding that any of this changed the
outcome, and I am not alleging that it did. What I am saying is more
circumspect, but difficult to refute: a process that builds in a further
hearing for the party under scrutiny, and none at all for the person who asked
the question, is not a process most people would recognise as evenly balanced
regardless of how the individual officers involved conducted themselves.
Nor
is it wise in my view for an independent internal reviewer to share her
proposed decision (based on her interpretation of the FOI Act) with the
agency’s senior management and expect that the agency’s reputation for
independent administration of the legislation would not be harmed. As the OAIC
website states:
As a merits review process, an internal
review is a new decision-making process in which an independent internal review
decision-maker remakes the original access refusal or access grant decision (link
here, para 9.2).
I
responded to the Chief Lawyer and expressed my reservations about this proposed
approach and requested a response to my concerns but heard nothing. It is not
clear if the Executive Committee were in fact provided with prior access to the
internal review decisions.
A
related and separate issue particularly with more complex FOI matters is that
the agency legal unit provides support for both the initial decision maker and
the internal reviewer. This too is a potential conflict and also opens the
possibility of agencies pursuing strategic behaviour to slow down access, on
the basis that more restrictive (and perhaps less justifiable) decisions to
refuse access will often not be pursued, and if they are they can be adjusted
at a later time.
The
final agency decisions taken in these two NIAA matters are now before the
Office of the Australian Information Commissioner (OAIC). The OAIC is facing
considerable delays in processing outstanding FOI issues, especially
comparatively complex matters, so I am not expecting a response until early
next year.
Why
this is worth a post on its own
None
of this, on its own, focusses on what the documents contain. That's deliberate;
this post is about the nature of the journey — the conditions of the road, its
challenges and mis-directions, its byways and highways — not the destination.
But the nature of the journey matters. What is clear from the two cases
considered in this post is that the journey has become encapsulated in an
administrative labyrinth, designed to minimise transparency, pre-emptively
constrain potential criticism, promote secrecy and to disincentive citizens
keen to understand the workings of their government.
These
are issues that are broader than any one agency and emanate from the antipathy of
the Executive arm of government to transparency, and its all-encompassing focus
on managing the daily news cycle. In today’s public sector, agencies understand
this and act accordingly.
In
relation to the ORIC request, the unfortunate and almost comical accumulation
of what I term administrative misadventures points to potential broader issues
related to the agency’s capability and commitment to monitoring the governance
standards of the corporations in receipt of so-called royalty equivalents under
the NT land rights legislation. The Act provides for the payment of ‘affected
community’ monies arising from mining on ALRA titled land to be paid to
corporations established under the Corporations (Aboriginal and Torres
Strait Islander) Act 2006 (CATSI Act) which establishes the Registrar of
Indigenous Corporations and ORIC. There is thus an implicit expectation in the
ALRA legislation that these corporations will be appropriately governed and
that there will be capable (and culturally sensitive) regulatory oversight.
It
is patently clear that there have been serious corporate governance and accountability
issues in relation to the governance of some of the CATSI corporations on Groote,
including GHAC, for most of the last decade (link
here and link
here). This in turn raises the question: how has this been allowed to both
occur and persist.
Transparency
in relation to the adequacy and effectiveness of the regulatory oversight of
these corporations (and others elsewhere in the NT in receipt of s64(3)
payments) has been minimal. In these circumstances, the defensive and unnerving
approach of ORIC to my comparatively simple FOI request suggests that there are
underlying issues within ORIC that surely demand attention. This conclusion is
reinforced by the matters discussed in my recent post related to the
problematic nature of ORIC’s more general regulatory performance (link
here).
In
relation to the NIAA, a request that evolves into two separate requests, that
together take the better part of two months to progress past a first internal
meeting, that takes seven months to process from initial request to
finalisation of internal review, that gives the subject of the documents who
have a vested interest in avoiding embarrassing disclosures more opportunity to
be heard than the person asking to see them, and that runs a final check past
the very executives whose agency's earlier decision is under review, is not a
process that inspires confidence in the commitment of the Executive arm of
Government to the principles and objects of the FOI Act.
Conclusion
What
these two matters have in common is not just delay and discretion exercised
against disclosure, but a recurring willingness to withhold or redact the
specific — names, findings, factual detail — in favour of the general. A
further post will explore the systemic erasure of the recent history of what
has transpired on Groote Eylandt over the past decade and consider how this
contributes to making this history unintelligible and thus able to be reframed
in ways that shift responsibility and shape the publicly available narrative
going forward. A key focus will be to examine one instance of that pattern of
erasure in more detail: the treatment, across the NIAA FOI releases discussed
here, of the role of the former ALC Chair, the late Mr T. Wurramarrba.
At
a higher level, both case studies raise the same issue: the public interest is systemically
made subservient to the pressures for secrecy, avoiding accountability, and the
erection of barriers to the access of information concerning the ways in which governments
seek to manage what is, admittedly, an increasingly complex public policy
environment. The risk however is that these broader trends increase the risks of
corruption arising and spreading. It is no coincidence that the electorates demand
for better public governance had been met with the establishment of
anti-corruption institutions across most Australian jurisdictions. Unfortunately,
nor is it surprising that in doing so, governments have in various ways
constrained their remit and hobbled their operations. The experience of the National
Anti-Corruption Commission at the Commonwealth level over recent years is a
case in point.
In this context, it is worth reminding
ourselves of the principles underlying the establishment of the Freedom of Information
regime and contemplating whether they have been in any substantive sense
achieved.
Section
3 of the legislation states (emphasis added):
3. Objects—general
(1) The objects of this Act are to give the
Australian community access to information held by the Government of the
Commonwealth, by:
(a) requiring agencies to publish the
information; and
(b) providing for a right of access to
documents.
(2) The Parliament intends, by these objects, to
promote Australia’s representative democracy by contributing towards the
following:
(a) increasing public
participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing
scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these
objects, to increase recognition that information held by the Government is to
be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions
and powers given by this Act are to be performed and exercised, as far as
possible, to facilitate and promote public access to information, promptly and
at the lowest reasonable cost.
This
post has been produced with research assistance from Claude Sonnet 5
