The Bushfire Royal Commission is losing public support and Premier Brumby’s promise of an open inquiry is evaporating. The Commission’s ham-fisted handling of “leave to appear” is just the latest impediment. Fran Bailey, the Federal MP whose electorate encompasses most of the devastated area, has called for the Commission to be abandoned. Nearly everyone has been excluded from appearing before the Commission, yet applications were invited in the following broad terms to:

(send) … a brief outline … identifying the term or terms of reference in which the person or organisation claims an interest, explaining the nature of that interest and giving reasons why they should be given leave to appear before the Royal Commission.

Many people such as myself did exactly that, only to receive a form letter rejecting their applications because the Commission would only hear from “…an entity or person whose conduct is under direct scrutiny…”

This severe stricture was immediately undermined by the following waffle:

Given the wide-ranging nature of the terms of reference of the Royal Commission, it is not possible to grant leave to appear to all applicants.

Belatedly, the Royal Commission website gave yet another, very different reason to exclude most interested parties: “In a Royal Commission ‘leave to appear’ means an entitlement, granted by the Royal Commission, to be represented by legal counsel at the Royal Commission.”

There was no mention of this on the website when applications were invited. I’ve just received an email from the Commission apologising for not posting these restrictions on their website until just before the closing date.

In effect, the Commission’s lawyers have defined a Royal Commission as a de facto trial, not an open public hearing with “wide-ranging” terms of reference. Brumby promised the latter.

Of course everyone can’t appear before the Commission, but how to separate the wheat from the chaff?

Most applicants wish to make a contribution to the analysis of the bushfires. They are resources, not targets of the Commission. The Commission should hear both types of evidence.

The Commission has moved the goal posts. Having a genuine interest in or knowledge of the bushfires is no longer enough: if you’re not a perpetrator, step aside. Startled by the vehement protest, the Commission tried to compromise, if a written submission is “compelling”, the submitter may be called to appear. This is an ad hoc gesture. Just what constitutes “compelling”?

The Commission says that written submissions are welcome, but merely posting them on the Commission’s website is a passport to passivity. Appearing before the Commission enables the witness to be questioned and the public and media to assess the arguments. This is all the more necessary because of the dearth in Australia of journalists and independent commentators interested in and informed about wildfire. Journos would learn a lot from QCs grilling alleged experts, exposing conflicts of interest and sniffing out malodorous institutional cultures.

Royal Commissions do not have to be narrowly defined as de facto trials of “conduct” only. They were not so defined in the past. Least of all after natural disasters.

Royal Commissions have to address two crucial points: the scrutiny of those in authority and the wider context. The Commission has missed the second point. The Royal Commission is a roomful of lawyers unfamiliar with land or fire. They’re smart, but they need to hear both sanctimonious greens and exploitative, bullying rednecks to comprehend how the state’s sociological fault lines shaped the disaster and its vituperative aftermath.

Without public airing of scientific, social and land management questions, as well as evidence from survivors, essential policy changes may be misconceived or neglected. For instance, the Commission may swallow the notion that “controlled burning” is the solution, rather than a nuisance leading to complacency.

Nor can the behaviour of the scrutinised authorities be segregated from matters of policy before, during or after Black Saturday. Conduct has to be assessed in the context of policy and ideology. Take fire scientists and industry lobbyists for example. Where do you think the catastrophic “stay and defend” policy came from? Fire science based on Ash Wednesday.

The rest of the world never bought this crazy notion (already scathingly rejected by counsel for the Royal Commission), but Victorian fire agencies did. So science and the scientists need scrutiny. As do timber lobbyists and their ilk. They drive policy while the metropolis, bored witless by the bush, snores on.

The constriction of the Royal Commission is part of a pattern evident since Black Saturday. Entire districts were locked down for weeks in an unprecedented manner. Authoritarian controls were imposed, often devoid of common sense. Many residents suffered distress and economic loss as a result.

Government showed a revealing lack of trust in its own citizenry. The media were excluded on pain of arrest. The government and fire agencies went to ground, referring media enquiries to the Royal Commission.

In the absence of stringent questioning and analysis, media coverage retreated to endless replays of grief, narrow escapes and charity. Vested interests of all kinds instantly filled the vacuum, from global warming Greens to redneck vigilantes. The commentariat stared at the bushfires in amazement, groped for its prejudices, hyperventilated, then lost interest.

Not content with avoiding public criticism, the government shackled the Royal Commission by forcing all government agencies to be represented by a single legal team. Attorney-General Hulls told us why: “…to provide a coordinated government perspective on the bushfires.”

What a perfect summation of the desire to control the Royal Commission. The various agencies have vastly different roles, not to mention long-standing conflicts with each other. Separate interrogation of these agencies through independent legal teams is fundamental. The government’s talk of “openness” is just spin.

The cynicism of “one brief fits all” was only exceeded by the government’s subsidiary argument that a single legal team would reduce a gluttonous lawyers’ picnic to a parsimonious cut lunch. An unsavoury mixture of populism and authoritarianism.

Finally, we have the Royal Commission’s bizarre “survivor” hearings. These were closed to the public and media. The ostensible reason was “privacy” for the affected residents. No one asked for privacy. If required, evidence could have been given on camera. Perhaps “evidence” is the wrong word. Were these meetings therapy or evidential or both? Surely fresh eye-witness evidence is essential to any inquiry, in which case these hearings should have been fully recorded. That’s the point of a public inquiry — all the evidence should be there in perpetuity for anyone to analyse.

Perhaps the Commission’s strange perambulation though the provinces now makes sense. Survivors have been excluded by legal fiat from the Royal Commission. Those informal, private town meetings are their lot. They deserve better. There’s time. Hearings will run well into next year. The Commission should revise its format now, or we may need another inquiry down the track.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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