I have previously written on calls for an inquiry following the current fire emergency – see Next comes the inevitable inquiry (January 7, 2020). The Prime Minister continues to float the idea of a Royal Commission and others are now publicly questioning the value of yet another inquiry:
- Kevin Tolhurst, ‘We have already had countless bushfire inquiries. What good will it do to have another?’ The Conversation (16 January 2020) (republished on ABC News (Online) (16 January 2020);
- ‘Firefighters are urging Scott Morrison to rethink federal royal commission into bushfires’ SBS (Online) (15 January 2020); and see also
- Michael Eburn and Stephen Dovers ‘What sort of inquiry should come after these fires?‘ Pearls and Irritations (7 January 2020).
- For commentary on the value of a Royal Commission see Scott Prasser, ‘How Royal Commissions can both help and hinder’ Australian Financial Review (14 January 2020).
I again join in these calls to reconsider the value of a Royal Commission.
In research that I did with my colleague Prof. Stephen Dovers we looked into why firefighters reported concerns about potential liability for their action. We discovered that it was not liability (as a lawyer would use the term) that was the problem, it was the legal process that was the issue (‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire 488-497). The legal process is often, if not always, adopted in modern Royal Commissions so it can further traumatise those that have been involved in the fires.
In our research and published papers we have argued that there needs to be a better way to learn lessons without sacrificing the good will of those involved in the emergency. An inquiry, like litigation, is necessarily retrospective rather than a tool to help communities recover from the event (see Eburn, M., ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13.
In our CRC report (Learning for Emergency Services: Looking for a new approach (2017)) we said:
After a significant hazard event there are pressures to call an independent inquiry. Hopefully the driving force is a desire to identify what happened and identify lessons that may better inform future practice, but the reality is that there are multiple ‘other’ considerations that influence the decision to establish an inquiry. Royal Commissions and coronial inquiries have a tendency to fall back on tried and true legal behaviour with lawyers seeking to protect their client’s interests; witnesses are required to answer questions rather than tell their story; fact finding and recommendations are limited by the particularities of the event, the terms of reference or the governing legislation. Each inquiry makes recommendations to avoid the last event, but the next event will not be the same as the last event – ‘a tendency … to spend the peace time studying how to fight the last war’.
Recommendations are necessarily counterfactuals, they are predictions that some other approach or some reform will work better but the future possibility is being judged against a past, known outcome. What implementation of the recommendations will actually achieve is unknown until the next event and sometimes diligent application of one inquiry’s recommendations will produce a result that is subject to a contrary-recommendation after the next event.
Identifying areas of improvement and making recommendations may not help. Recommendations may not be implemented, may be impracticable or may conflict with other social and policy concerns. The agency required to implement them may reject the inquiry’s balance or not accept the quality of the evidence that the inquiry relies upon.
Royal Commissions are great when you want to get information from people who do not want to share (corrupt police, bankers or abusive aged care providers). A Royal Commission is not the best way to learn lessons from an event such as this. The government should avoid the temptation to call a Royal Commission in order to be seen to be doing ‘something’. There has been extensive research and action on bushfire management, the development of community resilience, fire warnings and the like. The Commonwealth has been part of that research through the Bushfire and Natural Hazards CRC and before that the Bushfire CRC. The Commonwealth has developed and been implementing policy statements such as the National Strategy for Disaster Resilience (2011) and the National Disaster Risk Reduction Framework (2018).
The fact that these fires have occurred does not mean that there has been any failure in planning for or responding to the fires (though it may imply a failure in steps to prevent or mitigate the risk of fire). A response plan (such as the various state emergency management plans and the Commonwealth’s disaster plan – COMDISPLAN) are activated when there is a disaster. The fact that the disaster occurs does not mean the plan failed. Communities are resilient to fire when they are able to survive and recover after the fire, the fact that the fire occurs or that property or lives are lost does not meant that work to enhance resilience has failed. As Tolhurst says ’Another royal commission will only reiterate what we have known for decades’.