Overview

On 20 February 2020, the Federal Government released the Terms of Reference for the Royal Commission into National Natural Disaster Arrangements, known colloquially as the Bushfires Royal Commission.

Although it was triggered by the bushfires, this inquiry will consider all "natural disasters", a broad term that can also include events such as floods, storms, hail, lightning, and earthquakes. It therefore has the potential to affect many entities—both public and private—beyond those that were directly affected by the recent fires.

The Royal Commission's Terms of Reference recognise that "the changing global climate carries risks for the Australian environment and Australia's ability to prevent, mitigate and respond to bushfires and other natural disasters". They also acknowledge that Australia must develop and implement adaptation actions to address the consequences of longer, hotter, drier seasons and severe weather events.

This is widely seen as a progression in the Morrison Government's approach to climate change.

However, the Federal Royal Commission will not expressly focus on the causes of climate change, or the extent to which climate change contributes to natural disasters.

The key issues include the coordination of Commonwealth, State and Territory resources in relation to "natural disasters", along with the question of whether the Commonwealth Government should have the power to declare a "national emergency," and what such a power would mean. The inquiry will also focus on building resilience to natural disasters, along with measures to adapt to the changing climate. This will include an assessment of how traditional land and fire management practices of Indigenous Australians could improve Australia's resilience to natural disasters.

Finally, the Terms of Reference include consideration of a national system of standards and rule-making with respect to land management (including hazard reduction), wildlife management and species conservation, and land-use planning, zoning and development approvals. If adopted, this could transform the ways that land use and zoning have been managed in Australia, which has been a matter for each state or territory.

The Royal Commission will begin accepting submissions from the public in March, with the final report and recommendations due by the end of August. No hearing dates have been announced as yet, but the Commission will have the usual powers to compel witnesses and require people to provide evidence.

In view of this short timeline, we encourage all those who anticipate that they may be required to participate—or would like to do so—to begin preparations.

Baker McKenzie's Climate Change team is working to support clients in relation to this inquiry, as well as the two state-level bushfire inquiries that are currently on foot. The following is a high-level overview of these inquires, and the legal issues that may be relevant to both public and private entities.

Please do not hesitate to contact us if you would like to discuss these issues or any others relating to these inquiries and how they might affect you or your organisation.

1. Coordination between Commonwealth, State, Territory and local Governments.

The Royal Commission will assess how responsibilities in relation to natural disasters are delineated between Commonwealth, State, Territory and Local Governments. This will include preparedness, responses, resilience and recovery from natural disasters, and a consideration of how resources are shared.

The Royal Commission will consider existing arrangements and what could be done to improve them.

2. Improving resilience, adapting to climate change, mitigating the impacts of natural disasters, and enhanced accountability

This element of the inquiry will consider:

  • Australia's arrangements for improving resilience and adapting to changing climatic conditions;
  • What actions should be taken to mitigate the impacts of natural disasters; and
  • Whether accountability for natural disaster risk management, preparedness, resilience and recovery should be enhanced, including through a nationally consistent accountability and reporting framework and natural standards.

3. Whether legal reforms are necessary to enable the Commonwealth to respond to national emergencies

The press release accompanying the Terms of Reference quotes the Prime Minister as saying that the recent bushfires exposed a "constitutional grey zone" because the Federal Government lacked the power to declare a national emergency, which would have given it clear authority to take direct actions in response to the fires.1

Currently, the Federal Government must wait for a request from a State or Territory, according to the Prime Minister. Without such power, the Federal Government acted "without clear rules" when it issued the first compulsory call-out of the Army Reservists and enlisted 6,500 Australian Defence Force (ADF) personnel to support state and territory response efforts, said Mr. Morrison in the press release.

The Royal Commission is therefore directed to consider:

  1. State or Territory requests for federal assistance, including thresholds for those requests, and obstacles that may hinder or prevent them; and
  2. The possibility of creating a Commonwealth power to declare a national emergency, along with how such a national declaration would interact with State and Territory emergency frameworks, and if the Commonwealth Government should have clearer authority to take action following such a declaration. The Commission will consider whether such action should include deploying the ADF.

4. State inquiries

The Royal Commission will occur concurrently with at least two state-level investigations into the recent fires. However, the Royal Commission's Terms of Reference explicitly direct it to avoid duplicating the efforts of other inquiries, as well as previous inquiries and reports into similar events.

NSW Independent Bushfire Inquiry

On 10 February 2020, the NSW Government established an independent inquiry into the bushfires.2 Unlike the Federal Royal Commission, this inquiry will consider "any role of weather, drought, climate change, fuel loads and human activity" as a cause of, or contributing factor to, the fires.

It will also look at preparation and planning by agencies, government and other entities, including laws, practices and strategies. And it will consider responses to bushfires, including immediate management, warning systems, resourcing (including coordination and deployment) safety of first responders, and equipment and communication.

Looking forward, the inquiry will consider preparation and planning for future bushfire threats and risks. It will also examine land use issues. As noted above, the Federal Royal Commission is tasked with assessing land use but not if such consideration would duplicate the efforts of other inquiries. It will be interesting to see how the respective inquiries manage this area of potential overlap.

Inquiry into the 2019–20 Victorian Fire Season

On 14 January 2020, Victoria's Inspector-General for Emergency Management announced its inquiry into the 2019–20 fire season, to be conducted in two phases. The first phase will focus on community and sector preparedness for the fires, and responses to them. The second phase will consider the progress and effectiveness of Victoria's immediate relief and recovery arrangements in relation to the fires.

This inquiry will not consider the link between climate change and the fires. Like the Federal Royal Commission, it will consider issues of Federal-State coordination, as well as the effectiveness of the state declaration of emergency.

Similar to the NSW inquiry, this investigation will assess issues relating to first responders and volunteers, as well as community warning and response systems.

5. Analysis

During the fires, the issue of vegetation management and clearing became highly politicised. Additionally, climate change continued to generate enormous attention from the public, both in Australia and internationally. In our view, it is therefore likely that the Federal Royal Commission will receive significant public attention and submissions. Despite the absence of an express reference to the causes of climate change in the Terms of Reference, we anticipate numerous submissions on that topic from civil society, academics, industry and members of the public.

In addition, although the Royal Commission does not appear to be focused on the immediate causes of the fires, there is the potential for it to progress in that direction, given its broad powers and the inclusion of vegetation management as one of the issues for consideration. In light of the Royal Commission's powers to compel witnesses and evidence, it would be prudent for any person or organisation with potential exposure to commence preparations, both from a legal and reputational perspective.

All three inquiries could have particular focus on public authorities, and the adequacy of their preparedness and responses to the fires. Each of these inquiries also has the potential to make findings and recommendations that could affect the powers of State and local governments with respect to planning and development.

At the NSW level, the link between climate change and the increased frequency and severity of fires will likely garner significant interest and attention. We encourage those whose operations or organisations have a potential impact on climate change—particularly high emitters—to consider how they could be impacted by the inquiry.

To the extent that these inquiries are forward-looking, they could provide valuable insights for clients in terms of opportunities relating to resilience and adaptation in the context of climate change. The Royal Commission's focus on "natural disasters", rather than simply on fires, is especially interesting in this regard because global warming will continue to result in more frequent and costly events that would fall within that term.

Finally, we expect significant attention to the notion of creating a federal power to declare a national emergency. We note that the Terms of Reference do not state that such a power would be limited to situations of natural disasters. Depending on how any such power were formulated, it could have different implications for states and territories.

Please do not hesitate to contact us should you wish to discuss issues arising from these inquiries, or any other matter relating to risks and opportunities linked to climate change.


1 https://www.pm.gov.au/media/national-royal-commission-black-summer-bushfires-established.

2 https://www.nsw.gov.au/improving-nsw/projects-and-initiatives/make-a-submission-to-the-bushfire-inquiry/nsw-independent-bushfire-inquiry-terms-of-reference/.

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