The former supreme court judge who ran the Black Saturday royal commission says it is essential that climate change impact be part of an inquiry into the 2019-20 bushfires and has warned against any move to restrict its terms of reference.
Bernard Teague told The Australian Financial Review he also supported an examination of state and federal protocols for disaster relief.
Other lawyers said current roadblocks on federal assistance – a likely focus of the royal commission flagged by Prime Minister Scott Morrison at the weekend – could be overcome by relying on the implied nationhood power in the constitution, which gives the Commonwealth broad authority.
Mr Teague was a judge on the Supreme Court of Victoria from 1987 to 2008 before being tapped to run the inquiry into the Black Saturday fires of February 7, 2009, in Victoria that claimed 173 lives.
He said climate change had been “small beer” for his inquiry because of apparent consensus about its continuing impact.
“We had two hours on climate change – this is 10 years ago – because we could get a stack of scientists who would take one side and not one scientist was prepared to come before our commission and be cross-examined about climate change.”
He said that in 2010 “everyone was saying there’s only the prospect of worse fires in the future because of climate change”.
“It needs to be looked at it greater depth in light of the experience of the past 10 years, which has only shown what everyone now accepts – well almost everyone – that it has an enormous impact that we need to better understand.
“It impacts on a lot of things, like controlled burning for example.”
He said the inquiry needed to have the widest possible terms of reference and suggested there were a number of recently retired judges who would be candidates.
Mr Teague said it was better to have multiple commissioners, citing his own experience: “There were so many other perspectives they would bring to bear.”
He said the Morrison government should brave the potential criticism that might arise with any examination of the roles of state and federal governments.
“If a government says ‘these are the problems that are arising in the present situation and these are potential ways of dealing with them’, I think the community is going to be so much better off.”
One issue for any inquiry will be the activation of defence forces. Mr Morrison said on Sunday that the compulsory calling up of 3000 Army Reservists to help in the fire recovery effort had pushed the Commonwealth to the “very edge” of “extreme constitutional territory”.
Mr Morrison said he would take a proposal for a royal commission to cabinet and that it also would include building better resilience and adaption to climate events such as fire, drought, floods and cyclones.
‘States need to be consulted’
Fiona McLeod, SC, senior counsel for the Commonwealth at the Black Saturday royal commission, said there was a fundamental problem.
“If you look at the way Commonwealth aid has traditionally been provided, the States have to exhaust their resources – government, commercial and community – before they can ask for help,” Ms McLeod said.
Ms McLeod agreed with University of Sydney Professor Anne Twomey that there were doubts about whether such action was supported by the defence power or the external affairs power, which were used to justify using the defence forces in humanitarian and disaster aid overseas.
Both said they felt the implied nationhood power under section 61 of the Constitution would support any deployment for disaster relief, but Professor Twomey added that proper protocols for co-operation with the states were needed.
“The states have the expertise in dealing with bushfires, while the Australian Defence Forces have the expertise in the logistics and management of disaster relief, so it is imperative that systems be developed for them both to work together effectively in a crisis,” Professor Twomey said.
“It would be counter-productive for the Commonwealth to act unilaterally in calling out the troops, if they were getting in the way of firefighters. States need to be consulted before the troops are called out, so they can fill the greatest needs when they arise.”
She added the move to call out the reserves was covered by the provision in section 28 of the Defence Act which covers “civil aid, humanitarian assistance, medical or civil emergency or disaster relief”.
Professor Twomey said Section 119, which says the the Commonwealth “shall protect every state against invasion”, could also be given a wide application.
Mr Teague said the Black Saturday inquiry had no limitations, in contrast to the Hazelwood Mine Fire Inquiry of 2015-16, over which he also presided.
When the final report offered “matter for further consideration” the state government ordered another inquiry, which led to a recommendations on the long-term rehabilitation of power plants and the impact on human health.
He said if there had been any progress, it would be that there had not been anything like the number of lives lost in recent weeks compered to the devastation of Black Saturday.