By Darren James, Partner

National Black Summer Royal Commission Established

After some speculation, Prime Minister Scott Morrison’s proposed National Black Summer Bushfire Royal Commission has been established.

The Royal Commission will be headed by former Chief of the Defence Force, Mark Binskin. Mr Binskin will be joined by former Justice Annabelle Bennett, formerly of the Federal Court, and Andrew Macintosh, an environmental lawyer.

The Prime Minister has made it clear that the Black Summer Bushfire Royal Commission would be conducted swiftly and will be completed by the end of August this year. This time-frame is reflected in the Commission’s letters patent.

The terms of reference set out in the Commission’s letters patent are narrower than many had expected in the wake of prior suggestions given by the Prime Minister earlier this year. Nevertheless, they remain broad.

The Commission’s focus will be national. It will not be confined just to bushfires, but to all-natural disasters.

The Commission will inquire into three principal areas:

1. the responsibilities of, and coordination between, all levels of Government in relation to natural disaster preparedness, response and recovery;
2. arrangements to improve the resilience and adaptation of Australia to changing climactic conditions – in particular, whether there should be a nationally consistent regime for natural disaster preparedness, management, response and recovery; and
3. whether there need to be changes to Australia’s legal framework to provide for the involvement of the Commonwealth in responding to national emergencies with or without State or Territory request.

In looking at these 3 issues, the Commissioners have also been tasked to consider:

• ways in which Australia could harmonise aspects of land management, like hazard reduction burns, wildlife management and land use planning, across the States and Territories, through common national standards or rules; and
• ways in which the Australia’s First Nations People have managed land and fire, to see whether they might improve Australia’s response and resilience to natural disasters.

The royal commission’s hearings are expected to be public, and the evidence that is given to the Commission is, for the most part, also expected to be made public.

On 20 February, the release of the terms of reference follows a relatively long period of consultation by the Prime Minister with each of the State and Territory Premiers and Chief Ministers.

The need for the royal commission was the subject of active media debate across January and early February 2020 – not least because the Premiers of Victoria, New South Wales and South Australia each established and commenced their own State-based reviews and inquiries into the Black Summer bushfires during that period. 

It is clear, however, that the Royal Commission will proceed in tandem with each of the Victorian, New South Wales and South Australian reviews and inquiries.

The Royal Commission will also proceed alongside the Parliamentary Inquiry by the House of Representatives’ Standing Committee on the Environment and Energy.

Standing Committee Inquiry into the Impact of Land Management Practices, Policies and Legislation Upon Bushfires proceeding also

The Commonwealth House of Representatives’ Standing Committee on the Environment and Energy has commenced holding public hearings with its inquiry into the impact of land management practices, policies and legislation upon bushfires.

Late last year, the Standing Committee was tasked with inquiring into and reporting on the “efficacy of past and current vegetation and land management policy, practice and legislation and their effect on the intensity and frequency of bushfires and subsequent risk to property, life and the environment”.

Hearings commenced on 12 February in Canberra. Evidence was heard from Dr Peter Mayfield, Executive Director, Environment, Energy and Resources, and from Dr Daniel Metcalfe, Deputy Director, CSIRO Land and Water.

Following the announcement by the Prime Minister of the proposed Black Summer Bushfire Royal Commission in January 2020, there was some speculation as to whether the Standing Committee’s inquiry would continue. It appears that it will.

Public hearings took place 26 February 2020.

The Standing Committee’s inquiry is to focus on:

• past and current land and vegetation management practices;
• science and research behind activities such as hazard reduction burning, clearing and rehabilitation;
• the progress and implementation of mitigation strategies recommended in State reviews over the last decade; and
• the role that emergency services have working with land management officials in managing fire risk.

The Standing Committee is accepting written submissions in relation to one or more of its terms of reference by Tuesday 31 March 2020. Submissions can be made to the Standing Committee.

The Standing Committee’s hearings are expected to continue to be public.

Victoria’s Black Summer Inquiry

Early in 2020, Victorian Premier Daniel Andrews announced a 2 year inquiry into the bushfires that affected the State’s north east, Gippsland and Alpine regions during Black Summer.

This inquiry has commenced and is proceeding.

The inquiry is being conducted by the Victorian Inspector General for Emergency Management, Tony Pearce.

The focus of the Inspector General’s inquiry is Victoria’s preparedness for and response to the north east, Gippsland and Alpine region bushfires, and Victoria’s relief and recovery efforts following them.

The Inspector General has been tasked with looking at a wide range of issues, including:

• the effectiveness of emergency management command and control and operational response;
• the effectiveness of the declaration of a state of disaster;
• the timeliness and effectiveness of the activation of Commonwealth assistance and resource availability;
• Victoria’s evacuation planning and preparedness process and practices;
• Victoria’s preparedness ahead of the 2019-20 fire season; and
• the effectiveness of immediate relief and recovery work and arrangements, and the creation of Bushfire Recovery Victoria, the National Bushfire Recovery Agency and how they work together.

The Inspector General’s preliminary recommendations on preparedness and response will be provided quickly – by 31 July 2020.

The Inspector General’s final recommendations are due to be provided by 30 June 2021.

The Inspector General’s office has been provided with an additional $2.55m by the Victorian Government to undertake the inquiry.

The first phase of the Inspector General’s review will concern community and sector preparedness for and response to the 2019-20 bushfire season.

Phase 1 will include a revive of all opportunities and approaches to bushfire preparedness. This will include “different methods of fuel and land management (for example, ‘cool burning’, mechanical slashing, integrated forest management, traditional fire approaches) to protect life and property as well as ecological and cultural values”.

This will likely be of significant interest to many, as many of the Victorians affected by the Black Summer bushfires after it passed through natural forest estates.

Phase 1 will also look a wide range of other areas, including the State’s warning systems (which were extensively overhauled following the 2009 Black Saturday bushfires), and the availability and use of private assets and resources to support emergency preparedness and response to bushfires.

Phase 2 will concern the progress and effectiveness of Victoria’s immediate relief and recovery arrangements, including the working relationships between State and Federal bushfire recovery agencies and Emergency Management Victoria.

The Inspector General has already announced a program of extensive 2 hour community consultations, to be held at 26 locations across Victoria during March and April 2020. The object of these meetings is to enable community members to discuss their views about and experiences with bushfire preparedness, response and recovery.

Information gathered during community meetings will inform the Inspector General’s Inquiry.

The Inspector General has now opened an online portal for submissions.  Submissions in relation to preparedness and response will be considered until 15 April 2020.  Submissions on relief and recovery will be considered until April 2021.

It is not clear whether the Inspector General will hold public hearings at which evidence from relevant Victorian agencies will be given.  At this stage, however, it looks unlikely that this will be so.

It is also unclear whether the Inspector General will release, for public consumption, all evidence that is received from relevant Victorian agencies.  At this stage, it is expected that only those aspects of that evidence that are set out in the Inspector General’s report are likely to be made public.

New South Wales’s Black Summer Inquiry

Earlier this year, New South Wales Premier Gladys Berijiklian announced the conduct a wide ranging independent expert inquiry into the Black Summer bushfires.

The inquiry will “leave no stone unturned”, Premier Berejiklian said.

The inquiry will be led by the former Deputy Commissioner of NSW Police, Dave Owens, and the Independent Planning Commission Chair and former NSW Chief Scientist and Engineer, Professor Mary O’Kane.

The remit of the 6 month inquiry is considerably broader than that to be conducted in Victoria. It is to consider, among other things:

• the causes of, and factors contributing to, the frequency, intensity, timing and location of, bushfires in NSW in the 2019-20 bushfire season – including consideration of any role of weather, drought, climate change, fuel loads and human activity.
• the preparation and planning by agencies, government, other entities and the community for bushfires in NSW, including current laws, practices and strategies, and building standards and their application and effect.
• the responses to bushfires, particularly measures to control the spread of the fires and to protect life, property and the environment, including: ◦immediate management, including the issuing of public warnings

The inquiry will also be tasked to make recommendations as appropriate, including on:

• preparation and planning for future bushfire threats and risks.
• land use planning and management and building standards, including appropriate clearing and other hazard reduction, zoning, and any appropriate use of indigenous practices.
• appropriate action to adapt to future bushfire risks to communities and ecosystems.
• emergency responses to bushfires, including overall human and capital resourcing.
• coordination and collaboration by the NSW Government with the Australian Government, other state and territory governments and local governments.
• safety of first responders.
• public communication and advice systems and strategies.

The inquiry has already commenced receiving submissions from the public

Submissions close on 27 March 2020 and can be made online.

The inquiry will shortly commence travelling to bushfire affected communities to meet with and hear from those directly affected. The first visit was scheduled for Lithgow, on 25 February 2020.

It is understood that the inquiry will not hold public hearings at which evidence from New South Wales’ agencies will be adduced.  It is not expected, therefore, that evidence received during the inquiry will be released publicly, except to the extent set out in the reports issued by the Inquiry.

South Australia’s Black Summer Review

The Premier of South Australia Steven Marshall has also announced the conduct of an independent review into the Black Summer bushfires in South Australia.

The review will focus on both the Kangaroo Island and Cudlee Creek bushfires.

It will be comprehensive and will consider:

• reducing bushfire ignitions from electricity infrastructure, arson, machinery and power tools, lightning strikes and detection and hazard reduction
• community preparation and resilience – in particular, community education and engagement, home and contents insurance, volunteer training, and farm fighting units;
• the role and of the State Bushfire Plan and the State Bushfire Coordinating Committee;
• emergency planning under the State Emergency Plan
• planning and land use planning, including bush fire zoning
• incident management and emergency coordination
• public information and warnings systems, including Alert SA and coordination of messaging across government
• firefighting equipment and resources
• interstate deployments
• rapid damage assessment
• transitional arrangements to recovery, including defence force and Commonwealth assistance.

The inquiry will be led by former Australian Federal Police Commissioner, Mick Keelty. Mr Keelty will conduct this review with the support of the South Australian Fire and Emergency Services Commission, together with experts from the State’s Emergency Services Sector.

The inquiry is currently inviting members of the public to provide input to the review and to make written submissions here.

Volunteers Associations, Unions, staff and volunteers of Fire and Emergency Services and associated agencies will also be invited to provide feedback and written submissions in due course.

Public consultation will close 22 March 2020 and the review’s findings will be provided to the State Government by 30 June 2020.

It is not expected that the inquiry will conduct public hearings, or that it will release the evidence received other than to the extent that evidence is set out in the reports issued following the review.

Getting involved

If you, your business or agency are considering making a submission to the Royal Commission, the Senate Committee or to any of the State-based Inquiries or Reviews being conducted, or are asked by any of them to give information or evidence, you should obtain legal advice.

There are rights, obligations and a variety of legal and regulatory risks that you need be aware of, and which may affect, how and whether you provide information (whether voluntarily, or under compulsion).

There are also issues that you may need to bear in mind, given that there have already been threats of class action and other litigation in relation to the events that occurred during the Black Summer bushfires.

If you would like assistance in this regard, please contact Darren on +61 3 9605 0952 or [email protected].