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Recriminations follow natural disasters</h1>
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<span class="source-prefix">by:</span> <cite> Michael Eburn and Anthony Bergin </cite></li>
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<span class="source-prefix">From:</span> <cite> <a class="source-theaustralian" href="http://www.theaustralian.com.au/">The Australian</a> </cite></li>
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<span class="datestamp">March 30, 2012</span> <span class="timestamp">12:00AM</span></li>
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<p><strong>THE report of the commission of inquiry into the Queensland floods has plenty of antecedents. </strong></p>
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<p>This report can be added to a growing list of similar recent reports; the 2009 Victorian Bushfires Royal Commission report, the 2011 Comrie report into the Victorian floods and two reports by former AFP commissioner Mick Keelty into fires in Western Australia.</p>
<p>There&#39;s a long list of such inquiries going back to the 1939 Stretton Royal Commission into bushfires in Victoria.</p>
<p>Notwithstanding our experience with natural disasters, the community remains surprised when such events occur.</p>
<p>The Queensland Floods Inquiry interim report began by noting that no one could have believed that people could be swept by a torrent from their homes and killed.</p>
<p>Despite the fact that Australians have a long history of responding to such events, we do not always recognise that natural disasters are inevitable. The result is that after each significant event there are calls for another inquiry.</p>
<p>Disaster inquiries are getting longer and more personal.</p>
<p>The 1939 Stretton Royal Commission was established on January 27, 1939, to investigate fires that had occurred in that month and claimed 71 lives.</p>
<p>The commission had its first sitting day on January 31, 1939, and its last on April 17 that year.</p>
<p>The 36-page final report was signed off one month later on May 16.</p>
<p>The Teague Royal Commission, on the other hand, took from February 2009 to July 2010 to report on the fires.</p>
<p>It conducted 155 days of hearings and produced a final report in excess of 1000 pages.</p>
<p>The Stretton report on the 1939 Victoria bushfires contained only seven very broad recommendations on fire and forest management.</p>
<p>By contrast, the recent Teague inquiry produced 67 recommendations, that even got down to covering the dispatch protocols of aircraft.</p>
<p>The Queensland Floods Inquiry made a staggering 177 recommendations.</p>
<p>Early inquiries focused on the causes of disasters and social conditions that led to vulnerability.</p>
<p>But later inquiries have focused on the response and have made personal comments and judgments about the conduct of individuals: adverse comments have been made about incident controllers and incident management teams in a number of inquests and inquiries.</p>
<p>The most recent action, referring Queensland&#39;s flood engineers to the Crime and Misconduct Commission, represents the next step in that progression, although they have been referred because of their conduct before the inquiry rather than any actions taken during the flood emergency.</p>
<p>Few emergency managers have remained in office after criticism in inquiry reports. Most were allowed to resign. The chief officer of the Victorian Country Fire Authority resigned 10 months after criticism in the 2009 Victorian Bushfires Royal Commission interim report and one month before the release of the final report.</p>
<p>Disaster inquiries evolve over time, but our emergency service leaders need to be ready to respond from day one.</p>
<p>Seeing heads roll may give the community some satisfaction and a belief that any problems are now solved.</p>
<p>But the problems in emergency management are generally not caused by inadequate response or lack of inter-agency co-operation.</p>
<p>They are the product of earlier policy decisions: where and how we live, how we balance competing objectives in areas like land use planning, and how we take responsibility for our own welfare.</p>
<p>Litigation against the state for the impact of fire and floods is a relatively new phenomenon.</p>
<p>The first reported case was decided in the Northern Territory in 2003.</p>
<p>Since then fire agencies have been sued over the response to the Sydney fires of 2001 and the 2003 Canberra fires.</p>
<p>Litigation over the 2009 Black Saturday fires was started even before the fires were extinguished.</p>
<p>None of these cases have yet been resolved by the courts. Critical legal issues regarding what, if any duty, do the emergency services have to individuals remain untested.</p>
<p>In each case the defendant has been the relevant state or territory; no one is about to sue individuals.</p>
<p>But fear of legal liability is now widely reported and may explain some of the conduct that has been exposed by the Queensland Floods Commission of Inquiry.</p>
<p>Even if there is no personal liability there is the time, cost and inconvenience that emergency managers must put into responding to more and more complex post-event inquiries, coupled with the fear of personal attribution of blame.</p>
<p>The flood engineers may not be liable for any default, but there is no doubt there is, and was, an increasing sense of blame: an untested belief that had they acted differently, the outcome would necessarily have been different.</p>
<p>And who would want to have been the incident controller on January 8, 2003, when fires first started around Canberra?</p>
<p>She has had to explain her actions to the McLeod Inquiry, the inquiry by a coroner and in Supreme Court litigation.</p>
<p>As we approach the 10th anniversary of these fires, she still waits for a judgment on whether or not her decision, made in the field and without the benefit of counsel to represent each option, was reasonable and whether or not she, in a legal sense, contributed to the devastation of the Canberra suburbs and the loss of four lives.</p>
<p>The public sometimes asks why our emergency services have not learned the lessons from disaster inquiries. Indeed, there is now a community expectation that nothing much will go wrong.</p>
<p>But a legal process that places individuals under extreme scrutiny for the actions they take in a crisis may not identify the lessons that must be learned after disasters, without also sacrificing Australia&#39;s emergency managers and putting at risk our volunteer emergency services.</p>
<p>Just as military lawyers are now found advising commanders on the legal aspects of combat missions, it may be necessary to have those specialised in emergency law insert themselves into the planning and execution processes of counter disaster operations.</p>
<p><em>Michael Eburn is a senior fellow at the Fenner School of Environment and Society and ANU College of Law. Anthony Bergin is director of research programs at the Australian Strategic Policy Institute.</em></p>
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