Michael Eburn

Learning Lessons from Disasters: Alternatives to Royal Commissions and Other Quasi‐Judicial Inquiries

With over 50 inquiries in 75 years, Australian communities continue to suffer from the impact of extreme events whether fires, floods, cyclones, or other emergencies. Einstein is reported to have said ‘Insanity: doing the same thing over and over again and expecting different results’. The insanity may not lie in responding to fires and emergencies the same way, and facing another tragedy, but in reviewing these events in the same way and expecting the quasi-judicial process to identify how to prevent the next one. This paper argues that it is time to do the post-event review in a different way and suggests some possible options for new approaches to learning lessons from tragedy.

Exposing hidden-value trade-offs: sharing wildfire management responsibility between government and citizens

Developing resilient communities and sharing responsibility for hazard management is the key to Australia’s ‘National Strategy for Disaster Resilience’. There are, however, a wide range of conflicting views on the appropriate responsibilities of governments, citizens and communities that are not well recognised in the national policy discourse. What the ideas of resilient communities and shared responsibility mean for wildfire management and how these ideas might shape wildfire safety thinking and practice is therefore unclear and contested. This paper makes explicit some of the necessary, but often hidden, trade-offs between competing values that are implicit in assessments of where responsibility for wildfire management lies, and how it should be shared. After describing different ways in which responsibility is attributed and legitimated through legal and governance systems, this paper compares and contrasts potential legal and governance implications of four hypothetical scenarios for wildfire management, each of which portrays a contrasting set of extreme value trade-offs. The underlying purpose of the exercise is to encourage stakeholders to draw on the frameworks to explicitly acknowledge and debate the value trade-offs that are necessary, but most often unacknowledged, in more moderate decision-making about how to share responsibility for risk management between governments and citizens.

Australian wildfire litigation

Legal liability is an issue that concerns volunteer firefighters and may affect the ability of fire managers to perform their tasks. There are calls to guarantee firefighters will not be personally liable for actions undertaken in good faith. This paper reviews post-wildfire litigation in Australia and claims for compensation made against the New South Wales Rural Fire Service. Although the data are incomplete and likely to underestimate the actual claims history, analysis of the available data does show that the number of claims for compensation is small given the very large number of fires and hazard reduction burns across Australia. There is no evidence of extensive post-fire litigation or of fire agencies or firefighters being held liable for actions taken in the course of firefighting The evidence does not support assertions that there is an ‘increasing flood’ of legal claims arising from firefighting. Post-fire litigation is compared with other proceeding such as Royal Commissions and coronial inquiries. It is argued that it is not liability, but the lengthy post-event inquiry process and the risk of personal criticism that should be the concern of fire managers and firefighters.

Shared responsibility: the who, what and how

ABSTRACT As natural disasters increase around the world and stretch the capacities of emergency services, national governments and international institutions have stressed the importance of shared responsibility; the idea that all actors within a society have some obligations in disaster management and must work collectively to reduce disaster risk. However, the exact balance between individual and government responsibility is not yet established and continually contested, especially after major events. In Australia, the National Strategy for Disaster Resilience (NSDR) is the overarching policy framework for disaster risk management and aims to create resilient communities through an emphasis on shared responsibility and empowerment. Through a literature review and document analysis of the NSDR and associated policy documents, we clarify, organise and operationalise the necessarily general policy goal of shared responsibility. We first analyse how the NSDR conceptualises communities to discover which community actors are mentioned. We then identify the responsibilities it prescribes or implies for these different actors and consider the types of policy instruments that are relevant to disaster risk management. Our analysis reveals a tension between the NSDR’s placement of government at the centre of disaster risk management, and its other, less well-explained emphasis on community empowerment.

Bushfires and Australian Emergency Management Law and Policy: Adapting To Climate Change and the New Fire and Emergency Management Environment

Abstract Modern emergency management policy is built around the concepts of shared responsibility and the development of resilient communities. Drawing on the Australian context, this chapter argues that giving effect to these policy directions will require negotiation between stakeholders and an inevitable trade in values, interests, and resources. The chapter identifies an apparent contradiction at the heart of modern disaster management: that improvements in establishing professional emergency and risk management services may have reduced the capacity of individuals and local communities to take responsibility for disaster preparation and response.

Managing ‘civil contingencies’ in Australia

This paper identifies how ‘civil contingencies’ are addressed in Australia. It describes how responsibilities for emergency management are allocated across Australias federated system of government and provides a critical review of the institutional and structural arrangements. It is argued that, even though Australias emergency management arrangements have generally served the community well, there are undoubted limitations. One limitation is the lack of established Commonwealth response powers and weak arrangements to coordinate the Commonwealth response to emergency. It is further argued that Australias arrangements focus on governments and their response to emergencies. They have, to date, largely omitted other players, in particular non-government actors, whether that is private industry, communities or individuals. There is evidence that this is changing with the recent overarching policy statement – the National Strategy for Disaster Resilience.

How Can Business Share Responsibility for Disaster Resilience?: Responsibility for Disaster Resilience

This work was supported by the Bushfire and Natural Hazards Cooperative Research Centre and the Australian National University

You own the fuel, but who owns the fire?

In this paper, we argue that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire. That legal conclusion could have dramatic implications for fire management policies. It will be shown that liability for starting a prescribed burn is clear-cut whereas liability for allowing accumulated fuel loads to contribute to the spread of fire is almost unheard of. As a result, we argue that the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. After identifying the current legal position, we recommend changes to align the law with the national policy direction.

Disaster Risk Reduction in the Shadow of the Law

Abstract Law is a tool that can be used by interest groups to advance what they perceive to be their best interests, whether that is advocating for their right to build homes in hazard-prone environments or advocating against such development because of the social and economic costs of disasters. Identifying how interests are to be balanced, and responsibility for disaster risk reduction is to be shared, requires more than knowledge of local law. The allocation of responsibility must be negotiated with stakeholders, negotiation that takes place in the “shadow of the law,” that is, with an expectation of what the law requires and how others may behave to comply with legal obligations. There are, however, some (reasonably) fixed legal rules that set the outer limits of possible negotiation. With reference to international law and the laws of Australia, the United Kingdom, and the United States (nations with a shared legal history based on the English common law), this chapter will identify some legal boundaries that help define the limits of shared responsibility. Identifying these boundaries helps to show where laws shadow falls, and so empowers stakeholders by helping define what is possible in the negotiations for a safer community.

Disaster Resilience: Making the National Strategy Local

Delivered as the 2014 Drummond Memorial Lecture at Drummond and Smith College, the University of New England, Armidale NSW, this paper argues that implementing the Australian National Strategy for Disaster Resilience requires necessary but often hidden trade offs of values and interests. How those values and interests need are to be traded needs to be the subject of discussion to avoid the classic communication failure, where everyone thinks they’ve agreed on some issue, such as ‘emergency management is a shared responsibility’ without realising they disagree on the details.