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’.
Australian Emergency Law 
Comments that RC’s are for getting information from those who don’t want to share, well we are dealing with Government Departments and as we all know, Public Servants are good at talking alot and saying nothing.
We need to drag information out of them to look at the vast complexity of Climate driven agenda and how best to position ourselves as a nation with regard to PPRR activities now and into the future.
100% agree. The political aspect of this is once a Royal Commission is called, the mere future presence of it allows politicians to deflect answers to difficult questions. The standard response will become “that will be a matter for the royal commission to consider.”
A Royal Commission into the lack of response to climate change, however, would be of great benefit…
I enjoyed your previous post on the Commonwealth’s emergency management powers. This one too is very informative. From the Prime Minister’s own statements when floating the royal commission idea I inferred that he has significant concerns about how Commonwealth/State relations govern disaster response and how the various powers available limit the ability of the Federal Government to respond. He specifically noted that the Commonwealth’s initial response had pushed the Constitution to it limits, or words to that effect.
You have previously noted that the Commonwealth has no emergency management powers. Apart from media comment about how the PM has personally failed affected people – if not actively contributed to the fires – many reasonable observations are being made about the different states’ command, control and management systems, and the disconnect with the Federal Government. An excellent example is that the emergency.vic.gov. au and the rfs.nsw rural fires web pages are in different formats, use different standards and employ different imagery. The systems of graduated warnings also differ. When fire knows no State boundaries this is clearly an issue, to say the least, and could be seen in play in the Corryong/Snowy and Mallacoota/Eden fires.
There are many other examples. Each state has its own disaster management protocols, not to mention building, land and forest management and regulation. Then there is funding . . . The young woman in Cobargo wanted the PM to fund more RFS trucks, but what could he say: ‘It’s not my responsibility’? Emergency Management within Home Affairs can coordinate a Federal Government response, suggest standards and plans, and provide some education. It has no executive (ie command, control and management) responsibility.
I know from my own experience (ADF and Defence), that the Federal Government can only intervene or support (or take responsibility in very limited cases and following strict protocols) a State following a specific request from that State. I understand the reluctance of States to surrender or confuse existing powers. I already see signs of State Premiers and emergency management leaders covering themselves about their hazard reduction records, hazard reduction being a recurring recommendation from every previous enquiry. I understand from your other post that giving the Federal Government an emergency management power might, by definition, allow the Government to declare any emergency that takes its fancy.
I also understand, from what I can see in the media, that the performance of ‘front-line’ responders and their regional commands is not in question.
I apologise for the long post, but surely a Royal Commission with appropriate terms of reference would compel all governments and their agencies – not responders themselves – to demonstrate the sorts of failings I have outlined. This is unlikely to happen under the auspices of COAG, because there is no compulsion to publicly address the issues and to act.
I am therefore interested in your thoughts on the best form of public enquiry that would make a material difference to national disaster response and management without re-visiting the actions of emergency workers in any given situation. Surely it’s all in the terms of reference?
Michael,
I am not so worried about the Response Operation to the Fires as the
agencies have done a great job.
We need to have a look at the multi-agency support arrangements.
We need to look at why we are not following the NSW Emergency Management
Arrangements and why is Recovery being run so differently this time.
Why have we had continual changes to the structure of management (daily
in some cases)
Political interference from both State and Federal people that don’t
understand EM Arrangements and cause problems by moving the goal posts
causing knee jerk reactions.
NSW Office of Emergency Management is so focused on Recovery you would
thing it is the only part of the Comprehensive Approach.
The Royal Commission needs to investigate Emergency Management
interoperability from Local – Regional – State – Federal.
I am looking forward to a Royal Commission because the Emergency
Management arena really needs it.
Save that there is little reason to think it will achieve anything
I am all for a RC with appropriate Terms of Reference – which in my view, should look very closely at standardising online platforms and warning. PLUS the perceived inadequacy of hazard reductions. In particular, what, if anything, has limited the ability of brigades to undertake HR’s. Local council rules which prevent landholders creating a buffer by removing trees in close proximity to their house; and the perceived reluctance of National Parks and Wildlife to conduct hazard reductions and let fire trails become overgrown – even placing large boulders at fire trail entry points to prevent all vehicular access – including fire fighting appliances. I am convinced many of the problems are not due to “Greenies” interfering on a day to day basis, but I suspect “Green legislation” brought into force perhaps decades ago has contributed to the serious impact these fires have had. It should perhaps even go as far as to look at allowing insurers to deny claims when structures destroyed by bush fire do not have a cleared area of adequate size around them.