‘Black Summer’ Royal Commission could redefine Commonwealth, State and local government roles, responsibilities and powers around natural disasters

After close to four months of battling bushfires in New South Wales and Victoria and confronting devastating loss of life, property, livelihood and wildlife, as well as two months of speculation, a Royal Commission arising from the ‘Black Summer’ bushfires has been announced.

The Royal Commission into National Natural Disaster Arrangements will, however, inquire more into government arrangements, responsibilities and coordination as well as the legal framework around the Commonwealth’s role in national emergencies than the causes of and circumstances around this summer’s bushfires and bushfire management specifically.

The three Commissioners, retired Air Chief Marshal Mark Binskin AC (Chair), former Federal Court Judge, the Honourable Dr Annabelle Bennett AC SC and, specialist in climate risk and impact management, Professor Andrew McIntosh, are required to submit a report by 31 August 2020.

Key takeaways

• The Commission’s lines of inquiry go to Federal and State government powers as well as the sufficiency of current national disaster arrangements.
• The Commission is to have regard to national coordination of matters largely under State jurisdiction including land management and land-use planning, zoning and development approval and construction of public infrastructure, as well as the ways traditional land and fire management practices of Indigenous Australians could be deployed.
• Changing climatic conditions are assumed in the Commission’s terms of reference and the Commission is to inquire into Australia’s resilience and adaptation to that challenge.
• The requirement that the Commission complete its work and submit a report in 6 months is likely to present significant challenges and shape the way the Commission is conducted.

Inquiry into ‘practical things that must be done to keep Australians safe’

The question arising from much of the media coverage of a potential bushfires Royal Commission over recent months has been the extent to which any Royal Commission would be asked to address the role of climate change and its impact on bushfires and other natural disasters faced by the country.

In his announcement yesterday, the Prime Minister stated that the impact of climate change ‘more broadly’ was accepted but that the Royal Commission will be looking at ‘practical things’ to keep Australians safer in longer, hotter, drier summers, being the conditions that Australians will live into the future.

This is reflected in the focus of organisation and coordination at all levels of government in the terms of reference.

Avoiding duplication

There have been a number of voices questioning the need for a Royal Commission into ‘Black Summer’[1], many of whom have indicated that previous bushfire inquiries have already covered, in detail, matters such as the deployment of defence force personnel, reduction of fuel loads, local and traditional knowledge and burning practices and our bushfire preparation, planning and response systems. By extension, there are concerns that there needs to be a greater commitment to implementing recommendations arising from previous inquiries.

The terms of reference expressly address this reservation by directing the Commission to avoid duplication of other reports and inquiries. That is so in respect of historical as well as concurrent inquiries, including:

• The NSW government recently announced a 6 month Independent Bushfire Inquiry to be led by Dave Owens APM, former Deputy Commissioner of NSW Police and Professor Mary O’Kane AC, Independent Planning Commission Chair and former NSW Chief Scientist and Engineer.[2] That inquiry is tasked with reviewing the causes of, preparation for and response to the 2019-2020 bushfires.
• In addition, in January, the Victorian government announced a 2 year inquiry by the Inspector-General of emergency management, Tony Pearce, including $2.55m for extra staff to review the recent bushfires in Victoria.[3] The initial report on preparedness and firefighting efforts is due by 31 July 2020, followed by a 2^nd report on relief and recovery, due 30 June 2021.

The Federal Royal Commission will cover some of the ground to be considered by the NSW and Victorian inquiries, particularly relating to the preparation for and response to the Black Summer bushfires. Coordination of that overlap is likely to present its own practical challenges.

Beyond concurrent inquiries, however, the Commission will also provide insight and recommendations into the coordination of a national response to national emergencies and the legal framework and constitutional challenges faced during the 2019-2020 season.

The focus on government roles, responsibilities and powers means the Commission has the potential to expose matters and make recommendations that could lead to the redefinition of Federal and State powers around natural disasters.

Report

However, the Commission is required to submit a final report by 31 August 2020, with the idea that recommendations can be acted upon in advance of the commencement of the 2020-2021 bushfire season. A timeframe of 6 months from announcement to final report is very condensed, given most Royal Commissions run for at least a year and in some cases as long as five years.

The Commission’s terms of reference indicate that the final report can be expected to cover and make recommendations around broad matters including:

• improving natural disaster management coordination across Commonwealth and State governments;
• improving the country’s preparedness, resilience and response to natural disasters; and
• the legal framework for the involvement of the Commonwealth in responding to national emergencies and how that integrates with state and territory legal frameworks.

These are, of course, matters of significance beyond the next bushfire season. Given, the Commission has much to do in a very ambitious timeframe, there is a risk (and concurrent challenge for the Commission) that the voices of broader groups of stakeholders may not be able to be heard. It will be interesting to see over the coming weeks how the appointed commissioners propose to conduct the Commission and who they will wish to hear from.

Gadens’ experienced, specialist Royal Commissions Team within the Disputes Group will continue to monitor the Royal Commission into National Natural Disaster Arrangements.

Our team has extensive experience in numerous Royal Commissions, inquiries and investigations, including significant roles in the 2018 Financial Services Royal Commission, current Aged Care Royal Commission, and past commissions including the 2013 Royal Commission into Institutional Responses to Child Sexual Abuse and 2009 Victorian Bushfires Royal Commission.

Gadens has a track record in being able to quickly assemble the right, multi-disciplinary team that can hit the ground running. For any queries relating to the Black Summer Royal Commission, please contact Kathy Merrick or Edward Martin.

[1] United Firefighters Union of Australia; Australasian Fire and Emergency Service Authorities Council.

[2] https://www.nsw.gov.au/improving-nsw/projects-and-initiatives/nsw-independent-bushfire-inquiry/

[3] https://www.igem.vic.gov.au/Fire-Season-Inquiry

Authored by:

Edward Martin, Partner
Kathy Merrick, Partner
Natalie McCabe, Senior Associate