Disasters

The Productivity Commission has recommended "a major restructure of Australian Government funding for natural disasters" in its two volume draft report on Natural Disasters Funding.

The Commission's terms of reference were noted here.

The draft argues that

Australia is exposed to natural disasters on a recurring basis. Effective planning and mitigation of risks is an essential task for governments, businesses and households.

Current government natural disaster funding arrangements are not efficient, equitable or sustainable. They are prone to cost shifting, ad hoc responses and short-term political opportunism. Groundhog Day anecdotes abound.

The evolution of the funding arrangements can be characterised by growing generosity by the Australian Government during the previous decade, followed by a swing to constrain costs and increase oversight after the recent concentrated spate of costly disasters.

Governments generally overinvest in post-disaster reconstruction, and underinvest in mitigation that would limit the impact of natural disasters in the first place.

As such, natural disaster costs have become a growing, unfunded liability for governments, especially the Australian Government.

Australian Government post-disaster support to state governments needs to be reduced, and support for mitigation increased. Some budget provisioning is also needed.

The Commission's preferred funding reform option is to provide a principal level of support to states commensurate with relative fiscal capacity and the original 'safety-net' objective, with the option of top up insurance for those states that require it. States need to shoulder a greater share of natural disaster recovery costs to provide them with more autonomy and a sharper incentive to manage, mitigate and insure these risks. Australian Government mitigation funding to states should be increased.

Governments have a role in providing emergency relief payments to individuals who have been seriously affected by natural disasters, to avoid immediate economic and social hardship. Reducing duplication, inconsistency, inequity and inefficiency in the provision of such relief is needed.

Governments can also do better in terms of policies that allow people to understand natural disaster risks and have incentives to manage them effectively.

Information is critical to understanding and managing natural disaster risk. Information on hazards and risk exposure has improved significantly in recent years, but there are opportunities to improve its consistency, sharing and communication.

Regulations affecting the built environment have a significant influence on the exposure and vulnerability of communities to natural hazards. While building regulations have generally been effective, there is evidence that land use planning is not always incorporating natural disaster risk. Greater transparency is needed.

Insurance is an important risk management option, especially for private assets. Households and businesses should be relied upon to manage natural disaster risks to their assets. Insurance markets in Australia for natural disaster risk are generally working well. Pricing is increasingly risk reflective, even to the individual property level.

Disasters and Dollars

The Australian National Audit Office has released a 106 page  report [PDF] on Emergency Defence assistance to the civil community, assessing "the administrative effectiveness of Defence’s procedures to provide emergency assistance to the civil community".

The report comments that emergencies (inc bushfires, floods and cyclones) are frequent and range in severity from small-scale incidents to large-scale, catastrophic events.

The human and economic cost of these events can be substantial. For example, the Black Saturday bushfires in Victoria in 2009 claimed the lives of 173 people, affected over 78 communities and destroyed 2029 homes; and the insured cost for losses due to Cyclone Oswald in 2013 was estimated at $1.1 billion in Queensland and New South Wales, with $154 million in State and Australian Government assistance provided to those affected.

A well‑directed, coordinated and timely emergency management response acts to minimise the impact of an emergency on the community and support the recovery process. When a natural disaster or other domestic emergency occurs, it is primarily the responsibility of the relevant state or territory (state) government to protect life, property and the environment. State governments draw on a range of emergency services, volunteer organisations and commercial resources when responding to emergencies. State governments may also request Australian Government non‑financial assistance to provide additional resources for response and recovery activities.

The Department of Defence undertakes a large majority of Australian Government emergency assistance tasks in response to state requests. When Defence accepts a request and provides emergency assistance, this is referred to as emergency ‘Defence Assistance to the Civil Community’ (DACC). The benefits of utilising Defence in support of emergency responses include that Defence is often able to deploy Australian Defence Force (ADF) personnel (including Reserve personnel) with relevant expertise and skills (for example, engineers), as well as equipment (from transport aircraft to water purification units). Defence may also have the capacity to deploy its personnel and equipment at relatively short notice due to the geographical proximity of certain bases to incident areas and its access to transport assets. Further, Defence has developed approaches to the planning, coordination and conduct of operations, which may be readily adapted to emergency responses.

The report considered 275 emergency DACC tasks from 2005–06 to 2012–13, with emergency assistance that included the airlift of equipment and personnel, engineering support, search and support, temporary accommodation, health and psychological support, aviation refuelling; and communications.

ANAO concludes

Under national emergency management arrangements, state and territory (state) governments have primary responsibility for protecting life, property and the environment in the event of an emergency in their jurisdiction. When state resources are inadequate, the Australian Government can be called upon to provide assistance, representing a ‘surge’ capacity within the federation. Some of the skills and assets available to Defence to conduct military operations can be readily applied in support of states responding to natural disasters and other emergencies, and as a consequence there is a regular demand for Defence assistance. Defence can provide assistance either directly for local emergency assistance (category 1 tasks), or through Emergency Management Australia (EMA) for significant emergency assistance (category 2 tasks) and emergency recovery assistance (category 3 tasks). Defence’s emergency Defence Assistance to the Civil Community (DACC) procedures therefore need to establish clear decision making, coordination and administrative arrangements to guide Defence commanders and personnel on the conduct of tasks outside of core military operations.

The effective contribution of Defence in emergency situations is highly dependent on the quality of relationships across the areas of Defence with emergency DACC roles, and between Defence, EMA and state emergency management authorities. It also depends on a strong feedback loop so that on-the-ground experience informs future operations.

In recent years Defence has played a prominent role in responding to natural disasters in Australia. As part of five major emergency DACC operations between 2008–09 and 2012–13, Defence has deployed significant human and physical resources, organised in Joint Task Forces (JTF), to provide assistance to state emergency management authorities. For example, Defence assistance to the 2009 Black Saturday bushfires in Victoria reached a peak operational strength of approximately 800 Defence personnel per day, and over 1250 Defence personnel provided assistance over the seven weeks of the operation. For these major operations, Defence also recorded supplier expenses totalling some $6.7 million, for items such as travel, consumable goods and garrison support. Defence has also undertaken many smaller scale emergency DACC tasks utilising Defence base personnel and resources located in the area of an incident, at the discretion of local commanders.

ANAO considers that

Overall, Defence’s emergency DACC procedures are generally effective in guiding and enabling the provision of Defence assistance in response to emergencies. The DACC Manual outlines principles for Defence commanders to consider when judging the merits of requests for Defence assistance, including the need to evaluate the readiness of Defence resources to achieve the Government’s expected defence outcomes against the capacity to make those same resources available in an emergency. Defence has also developed sound coordination arrangements with state emergency management authorities, involving the appointment of Defence liaison officers, who communicate with states about their emergency assistance needs and Defence’s capability to provide support, both prior to and during emergencies. Emergency management authorities interviewed as part of this audit acknowledged the responsiveness of Defence and the value of the support provided. However, emergency DACC has been largely focused on response efforts, with less attention given to meeting the administrative requirements set out in the DACC Manual, particularly in the areas of task recordkeeping and cost recovery. There is also scope for Defence to develop a stronger feedback loop to inform decision making on future emergency DACC delivery approaches.

While emergency DACC is only a small part of Defence’s overall responsibilities, it can involve a large number of Defence personnel, and the utilisation of valuable Defence equipment and supplies. In the circumstances, there is a need for Defence to develop straightforward administrative requirements. The Instruction of 2004 and the DACC Manual of 2012 set out extensive reporting requirements for individual DACC tasks, indicating a desire by Defence to understand the nature and cost of the provision of DACC, and to learn from experience. However, for many years Defence has not met these requirements across the DACC tasks it undertakes. The main focus of Defence units has been to complete tasks, and they have not prioritised reporting on tasks outside of the Service chain of command. The failure to record key task data means that other areas of Defence responsible for emergency DACC strategy, procedures and reporting are not routinely informed about the nature, resource impact and cost of emergency DACC tasks, as well as any task acceptance and delivery issues. To address these issues, Defence should review task reporting requirements to ensure they do not present an unnecessary administrative burden, but instead give priority to meeting an appropriate set of requirements that generates useful information to help shape future emergency DACC activities while satisfying recordkeeping requirements for accountability purposes.

To further encourage states to manage emergency recovery efforts using their own resources, the DACC Manual requires that the direct costs incurred by Defence in undertaking category 3 ‘recovery’ tasks be reimbursed by states, and only allows the ‘waiver’ of cost recovery in limited ‘special circumstances’. However, Defence has not consistently recovered or waived costs in accordance with the requirements of the DACC Manual. In contrast to its current policy, Defence has advised that it plans to amend the DACC Manual to indicate that costs are ‘generally not recovered unless the government recipient agrees to pay costs’, and that cost recovery ‘may not be warranted where it is not cost effective or it would be inconsistent with government policy objectives’. However, this approach does not clarify the circumstances in which cost recovery is warranted and Defence personnel are obliged to pursue the recovery of costs.

ANAO acknowledges  a decision for Defence and the Government before commenting that it

suggests  Defence review and clarify its cost recovery policy for emergency DACC, and develop practical thresholds for the application of cost recovery, in terms of the estimated value and type of recovery assistance provided. Pursuing such an approach would reinforce the responsibility of state governments for emergency recovery when the immediate threat to life, property and the environment has passed.

The emergent nature of emergency DACC tasks means that it is difficult to develop and apply objective measures of performance. Nevertheless, identifying lessons from emergency DACC activities, including the efficiency and effectiveness of the approaches adopted remains important. Defence has established some elements of an emergency DACC evaluation and learning system, including reports on major operations and an annual Lessons Board. The Lessons Board considers key themes arising from these reports, and can recommend procedural changes to improve the efficiency and effectiveness of emergency DACC.

However, these elements are not currently supported by an information system to record and manage key lessons and recommendations arising from DACC activities, creating a risk that learning will be lost and actions not pursued. The initial roll-out of a Defence‑wide system for managing lessons learned is planned for July 2014, presenting an opportunity for Defence to develop a stronger feedback loop to inform improvement in the administration and delivery of emergency DACC activities.

Within Defence, various office holders, Groups and Services have different emergency DACC responsibilities, ranging from the development of strategy and procedures to the completion of tasks.

ANAO indicates that

The audit highlights that the overall effectiveness of emergency DACC administrative arrangements depends on the collective contribution of all of these areas toward planning, delivery, monitoring and review efforts.

It goes on to recommend that

Defence review the minimum information necessary to be reported for each emergency DACC task for planning, management and accountability purposes.

Defence should also "take steps to strengthen the priority afforded by Defence units to meeting mandatory reporting requirements".

The Treasurer has meanwhile tasked the Productivity Commission with an inquiry into natural disasters funding.

The Commission is to

analyse the full scope (incorporating the quantum, coherence, effectiveness and sustainability) of current Commonwealth, state and territory expenditure on natural disaster mitigation, resilience and recovery, and develop findings on the following:

1. The sustainability and effectiveness of current arrangements for funding natural disaster mitigation, resilience and recovery initiatives, including – where directly relevant to an improved funding model – the management of disaster relief and recovery;

2. Risk management measures available to and being taken by asset owners – including the purchase of insurance by individuals, business and state, territory and local governments, as well as self-insurance options;

3. The interaction between Commonwealth natural disaster funding arrangements and relevant Commonwealth/state financial arrangements;

4. Options to achieve an effective and sustainable balance of natural disaster recovery and mitigation expenditure to build the resilience of communities, including through improved risk assessments. The options should assess the relationship between improved mitigation and the cost of general insurance. In doing this, the Commission should consider:

a. How business, the community, Commonwealth, state, territory and local governments can most effectively fund natural disaster recovery and mitigation initiatives;

b. How to ensure the right incentives are in place to support cost-effective decision making within and across all levels of government, business, non-government organisations and private individuals;

c. Mechanisms and models to prioritise mitigation opportunities and evaluate the costs and benefits of a range of mitigation options;

d. Options for urban planning, land use policy and infrastructure investment that support cost-effective risk management and understanding of the changes to the risk profile;

e. Options to fund identified natural disaster recovery and mitigation needs, including thresholds for triggering Commonwealth assistance to the states and territories;

5. Projected medium and long term impacts of identified options on the Australian economy and costs for governments as compared to impacts of the current funding arrangements; and

6. Options for transitioning to and implementing any proposed reforms to national natural disaster funding arrangements.

In undertaking the inquiry the Commission is to "take into account the roles and responsibilities of Commonwealth, state, territory and local governments, communities, insurers, business (including private providers of essential infrastructure), non-government organisations and private individuals".  It

should consider funding for disaster response only where directly relevant to mitigation, relief and recovery and existing Commonwealth/state joint funding arrangements. The Commission should also take into account evidence from previous reports, reviews and inquiries, including best practice, from overseas and in Australia. It should also take into account relevant recommendations of the Commission of Audit and developments in federal financial relations, noting that the Commonwealth is developing a White Paper on Reform of the Federation. Further, since much disaster spending is directed towards infrastructure, the Commission should take into account evolving infrastructure and asset management policy and practice at the national, state and local levels.

The scope of the inquiry will be focused on naturally occurring rapid onset events that cause a serious disruption to a community or region, such as flood, bushfire, earthquake, storm, cyclone, storm surge, tornado, landslide or tsunami.

Bushfires and liability

In Proude v Visic (No 4) [2013] SASC 154 the Supreme Court of South Australia has dismissed the application for summary judgment of a negligence case filed against Country Fire Service (CFS) by several landholders.

The landholders - via Proude - claimed that CFS negligently failed in attempts to contain and extinguish bushfires that ultimately burnt some 78,000 hectares on the Lower Eyre Peninsula.

The judgment notes that

On 10 January 2005 at about 3.00 pm, a bushfire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, approximately 45 kilometres north-west of Port Lincoln. Shortly before 3.00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the bushfire broke out. The bushfire burnt a local area of land up to a swamp known as paperbark swamp during the afternoon and night of 10 January 2005. The burnt land included five properties owned by five families.

On the morning of 11 January 2005, the bushfire and/or another bushfire broke out of the paperbark swamp. Mr Proude’s case is that it broke out at one point south (“area A”) and another point east (“area C”) of the paperbark swamp. The bushfire or bushfires (collectively “the fire”) ultimately burnt approximately 78,000 hectares on 11 January 2005.

In his fourth statement of claim, Mr Proude pleads that the losses suffered by those landholders whose properties were burnt on 11 January 2005 were caused, inter alia, by the negligence of the CFS in its response to the fire which resulted in its spreading out from the paperbark swamp on the morning of 11 January 2005. Mr Proude pleads that the CFS owed a duty to the landholders to take reasonable care in the course of attempting to control and extinguish the fire, and to prevent the spread of the fire to avoid foreseeable risks of property loss or damage.

Mr Visic pleads that the CFS owed a duty of care to Mr Proude to take reasonable care in the course of attempting to control, extinguish, and prevent the spread of the fire and so to avoid the foreseeable risks of property loss and damage.

In addition, Mr Visic pleads that the CFS owed a series of statutory duties to Mr Proude, including to prevent, control and suppress fires and protect property in fires in the country in South Australia in an effective and efficient way.

The CFS in its defence to Mr Proude’s claim denies that it owed any duty of care to Mr Proude or the landholders. The CFS also pleads by way of affirmative defence statutory immunity from civil liability under section 64 of the Act. ...

Mr Proude and Mr Visic accept that the CFS did not do anything which positively caused or exacerbated the fire. Their case is that, upon deploying to extinguish or contain the fire, the CFS owed a duty to the landholders to exercise reasonable care in doing so.

In Proude v Visic (No 3) [2012] SASC 234 Proude had pleaded that

that the bushfire and in turn the losses of all group members were caused by the negligence of Mr Visic on and as at 10 January 2005 ...

Mr Visic owed a duty of care to the group members to take reasonable care in the use and maintenance of his land cruiser so as to avoid foreseeable risks of injury;

Mr Visic was negligent in the use and maintenance of his land cruiser in that:

(a) he knew there were holes and imperfect joints in the exhaust system;

(b) he knew that the muffler did not have a spark arrestor;

(c) he knew that, because of those matters, the exhaust system might emit hot particles;

(d) he drove and/or parked the land cruiser in close proximity to dry vegetation on a hot day;

(e) he knew that the escape of hot particles from the exhaust system might ignite that dry vegetation and lead to a bushfire;

(f) alternatively he ought to have known each of the above matters;

(g) he failed to ensure that the exhaust system was not defective as alleged above or that there would be no risk of fire from his driving and/or parking his land cruiser as alleged above;

Mr Visic’s negligence caused the ignition of the dry vegetation and the fire which burnt an area of land on 10 January 2005 up to and including the paperbark swamp; the fire escaped from the paperbark swamp at area A and area C; the fires converged and burnt an area of land comprising approximately 78,000 hectares; the bushfire burnt the land and personal property situated thereon of the group members; the group members thereby suffered direct and consequential loss and damage. ...

the losses suffered by those whose properties were burnt on 11 January 2005 were caused concurrently by the negligence of the CFS in its response to the bushfire which resulted in its breaking out of the paperbark swamp on the morning of 11 January 2005 ...

the CFS owed to the group members a duty to take reasonable care in the course of exercising its statutory powers and functions to control and extinguish the bushfire so as to avoid foreseeable risks of property loss or damage;

the CFS was negligent in that:

(a) there were defects in its Incident Action Plan, in part as a result of inadequate gathering of information;

(b) there were defects in the handover from the first to the second Incident Controller and in failing to modify the Incident Action Plan in light of subsequent developments and information;

(c) there were defects in the passing of information from personnel at the firefront up through various levels of the CFS to State Headquarters and in the direction and control from State Headquarters down through various levels of the CFS to personnel at the firefront;

(d) the principal fire fighting measure adopted of blacking out the fireground to 30 metres was inadequate in nature and extent and additional blacking out, back burning and creation of bare earth breaks should have been undertaken and additional fire fighting resources deployed;

(e) no blacking out was undertaken and no fire fighting resources were deployed in area C until 3:30 am on 11 January 2005;

(f) no fire fighting resources were deployed at all in area A;

the negligence of the CFS permitted the fire to escape from the paperbark swamp at area A and area C;

the fires converged and burnt an area of land comprising approximately 78,000 hectares;

the bushfire burnt the land and personal property situated thereon of the group members;

the group members thereby suffered direct and consequential loss and damage.

Proude claimed that he  suffered losses of $2.267m and that the 257 landholders within the group  suffered total losses of approximately $60 million.  (Approximately 40 percent of this total appears to have been met by five insurers.)

In the current judgment the SASC found that the question of whether CFS's duty of care arose invited a multi-faceted inquiry into salient features of the relationship between parties. That inquiry could be properly assessed at trial.

Settling Black Saturday

Reading Thomas v Powercor Australia Limited [2011] VSC 614, concerned with the Victorian Supreme Court's approval of the settlement of a group proceeding (aka class action) regarding the Black Saturday Horsham bushfire.

The Court states that -

On 7 February 2009, Black Saturday, a bushfire started near the intersection of the Horsham-Remlaw Road and Remlaw Station Road, some 7½ kilometres west of Horsham. Over about eight hours, the fire burnt approximately 2,500 hectares. It destroyed 13 homes and many farm buildings and other structures. There was widespread loss of crops, pastures, livestock, yards, fences, trees, smaller vegetation and farm and other equipment. The Horsham Golf Club clubhouse was destroyed and its grounds were razed.

Laurence Peter Thomas, the plaintiff, lives and farms a property with his wife at West Road, Drung. Some parts of his property were damaged or destroyed in the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor coming into contact with vegetation. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998).

On 5 September 2011, the trial of this proceeding commenced before J. Forrest J, sitting in Horsham. The trial proceeded for five weeks. At the close of the fifth week, terms of settlement were provisionally agreed between the parties and the trial was adjourned. At the time of the adjournment, the lay evidence had been completed but expert evidence, which was being given by nine witnesses concurrently, was continuing. It was estimated by the parties that the completion of that concurrent evidence and the closing addresses would require a further five to eight days of hearing.

Terms of settlement of the proceeding have now been executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant’s losses assessed according to certain principles either agreed, or to be determined by the Court, plus penalty interest (from the date of issue of the proceeding) plus party-party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. ... The settlement agreement deals comprehensively with, amongst other things, the amount of the settlement, the notification of claimants, claims assessment procedures, claims assessment principles, the payments of claims and mutual releases.

Firebugs

My 'Burning with indignation: Arson, law and the 2009 Victorian bushfires' in 15(1) Local Government Law Journal (2009) 35 critiqued the outbreak of security theatre that followed close on the 2009 bushfires.

That outbreak saw politicians rushing to announce significantly stronger penalties for arsonists and media figures indulging in penal populism regarding 'bushfire arson', an offence that was apparently unique and egregious. I suggested that in the rush to judgment people appeared to ignore the reality that -

• some bushfires are 'acts of god' (eg started by lightning rather than by cunning pyromaniacs with beady red eyes and pointy evil ears),
• some may be attributable to poor maintenance of powerlines and other infrastructure (a comment that was later substantiated in official hearings),
• the deaths in 2009 although deeply regrettable might in part be attributable to the vicissitudes of evacuating people from difficult terrain at short notice, and
• some arsonists might lack the capacity we assume in an average Australian adult.

The deterrent value of a mandatory 25 year or life sentence is unclear when dealing with children who play with matches or adults who have fundamental psychological problems.

The last point is significant: it is undesirable as a matter of justice and public policy to impose extraordinary sanctions on people who have cognitive or other deficiencies, particularly if penal populism results in a higher punishment of someone whose action results in death through a bushfire than through a deliberately lit urban fire.

The ABC today reports that prosecutors have dropped all charges against two teenage boys (aged 15 and 16) accused of lighting a fatal bushfire at Bendigo in central Victoria on Black Saturday. That fire destroyed 58 homes, burned 341 hectares and resulted in the death of one man.

The boys were initially charged with arson causing death and intentionally causing a bushfire. In August this year, however, psychologists told the court that the boys are of abnormally low intelligence and incapable of understanding a trial or properly instructing their lawyers.

At that time they were deemed unfit to be tried but were still to face a special hearing to determine their guilt or innocence. The Victorian Supreme Court has today been told that the Director of Public Prosecutions will no longer pursue the case on the basis of insufficient evidence and a recognition that it was not in the public interest to proceed.

Westboro Hatespeech

The Arizona legislature is reported to have passed legislation to prevent members of the Westboro Baptist church (noted for hatespeech regarding LGBTQI people, Jews, Roman Catholics and sundry others) from disrupting the funeral of the nine-year-old victim of shooting by Jared Loughner.

Given the church's delight in excess - and the readiness with which the statements and activities of its members are relayed by the mass media - it is unsurprising that church founder Fred Phelps has praised Loughner for killing six people and announced that the righteous will picket their funerals. Westboro has attracted attention for disrupting the funerals of soldiers and people who have died of AIDS.

The new law does not stop the picketing. It does however keep the picketers at least 100 metres from the funeral.

Distaste for Westboro's activity is reflected in news that 40 people wearing 3m high angel wings will stand between the funeral and church members. A group of bikers reportedly will also interpose themselves between the fans of Mr Loughner.

The Supreme Court has yet to decided on the constitutionality of restrictions on protests at funerals in a case brought by the father of a soldier killed in Iraq. restrictions have attracted substantial academic literature, including 'A Time to Mourn: Balancing the Right of Free Speech Against the Right of Privacy in Funeral Picketing' by N Rutledge in (2008) 67(2) Maryland Law Review 295-357, 'Balancing Freedom of Speech with the Right to Privacy: How to Legally Cope With the Funeral Protest Problem' by A Messar in (2007) 28(1) Pace Law Review 101-128, 'Freedom of Speech and the Intentional Infliction of Emotional Distress Tort' by E Volokh in (2010) Cardozo Law Review, 'Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment' by C Wells in 1 California Law Review Circuit (2010) 71-86, 'The Incompatibility of Free Speech and Funerals: A Grayned-Based Approach for Funeral Protest Statutes' by R McCarthy in (2007) 68(5) Ohio State Law Journal 1469-1508, 'The Constitutionality of "Let Them Rest in Peace" Bills: Can Governments Say "Not Today, Fred" to Demonstrations at Funeral Ceremonies?' by K Ritts in (2007) 58(1) Syracuse Law Review 137-170 and 'Making Sense of "God Hates Fags" and "Thank God for 9/11": A Thematic Analysis of Milbloggers' Responses to Reverend Fred Phelps and the Westboro Baptist Church' by D Brouwer & A Hess in (2007) 71(1) Western Journal of Communication 69-90.

The latter comments that -

Through codes of religious authority, including scriptural references and common symbols of Christianity, Phelps claims the weight of God. On their protest signs and in their protest slogans, his church and his movement frequently employ the "Thank God for ..." motto, usually inserting the latest national tragedy, whether it be the death of Supreme Court Justice Rehnquist, Hurricane Katrina, or the improvised explosive devices (IEDs) that kill soldiers overseas. Phelps simultaneously defends and attacks through the use of Christianity. As a shield, religion and its constitutionally protected expression defend Phelps and his right of protest. Frequently, he has reverted to his religious rights and freedom of speech as a defense in court. As a weapon, Christianity warrants Phelps’ vexing presence at a sacred location that is particularly meaningful to military-aligned audiences. Phelps' articulations of religion inspire a riotous variety of responses about the values and meanings of Christianity, complicating any sort of ideological closure advocated in the name of Christianity.

The major funeral protest in Australia of which I am aware was at the Sydney Opera House memorial service for the unlovely Kerry Packer, with the arrest of eight protestors. In 2009 Westboro foreshadowed protests at the memorial service for Australian bushfire victims, stating that -

The guilty Australians will not repent of their national sins of the flesh - (ie sodomy, divorce, fornication, adultery, etc) - even after God killed hundreds in the fires and cast them into hotter fire and brimstone in Hell. Therefore we will picket them in their hypocritical grief.

Phelps and associates have been denied entry to Australia, the UK and Canada.

First hoons, now gawkers?

A friend has alerted me to proposals in South Australia for a 'bushfires gawker fine', likely to inconvenience the unpleasant partnership between 'mainstream' and 'citizen' media (with the former relying on DIY paparazzi to provide cheap images of live celebrities or dead nonentities.

The ABC reports that "a push is being made to impose a 'gawkers fine' on sightseers who hang around bushfire zones."

State/territory statute and common law provides some leverage in dealing with people who impede police, ambulance and fire service personnel in dealing with road accidents, house fires, industrial accidents and bushfires.

Port Lincoln mayor Peter Davis is reported, however, to have met with the South Australian Premier and Opposition Leader regarding a new law that would penalise "people caught by using their mobile phone cameras at bushfire scenes". The ABC report is sketchy but presumably such legislation would cover use of other digital still and video cameras, with exceptions for image capture by journalists (the latter being professional journalists rather than members of the 'citizen media').

Davis reportedly explained that he's seeking action -

when Parliament re-sits to immediately enforce the capacity of emergency service personnel to photograph these idiots' number plates and you'll get a 'gawkers fine'

That's more appropriate than demands by other figures earlier last year for life imprisonment, hanging, sterilisation or other nastiness to arsonists - questioned in my 'Burning With Indignation: Arson, Law and the 2009 Victorian Bushfires' in 15(1) Local Government Law Journal (2009) 35-45. A gawker fine alongside the hoon legislation discussed recently? Do we need special legislation for bushfires? Do we need legislation against any gawking?

Meanwhile the NSW Government, apparently still having trouble making sense of what went wrong with the 2008 'Henson' raid, discussed in David Marr's The Henson Case (Melbourne: Text 2009), is considering recommendations by the Child Pornography Working Party.

The 45 page report [PDF] by that Working Party is being spun in a predictable manner, given the unwillingness of an ailing government to avoid the temptation of voicing outrage and easy solutions.

Acting Premier John Hatzistergos has thus indicated that the 'artistic merit defence' - which contrary to hype has not been raised successfully on a large scale and thus has not protected legions of producers/consumers of child pornography - will probably be scrapped.

Although promising community consultation before legislation is introduced in the state parliament following the report, he commented that -

We have a situation where we have the clause being present almost as an excuse for child pornography. And that sets up a presumption that somehow it's OK for artists to create images that are pornographic. That's not the message that we want to get across.

In reality that statement is incorrect: there is no such legal presumption and it is unfortunate that such a statement is coming from a man who is also the state Attorney-General.

Media coverage of the report and its reception by the Government has highlighted the Working Party's recommendation that the maximum prison sentence for possessing child pornography should be doubled, ie increased to 10 years.

Mr Hatzistergos reportedly indicated that to his knowledge the 'merit' defence had not been successfully used in NSW and insisted that changes were not what the SMH characterises as "a knee-jerk reaction to the Bill Henson case of 2008", with Hatzistergos explaining that "It would be wrong to look at these laws in the context of any individual case".

While calling for deletion of the non-used 'artistic merit' defence the Working Party apparently has not suggested removal of the 'news and reporting' defence, with the Government hastening to add that the print/electronic media will continue to be free to feature images of kids.

Bushfires

The Victorian Royal Commission on the 2009 Bushfires has released its Interim Report (with a Final Report, including consideration of "methods for prevention, detection and management of arson", to be issued at the end of July next year).

Release of the report follows the March 2009 'National Forum on the Reduction of Deliberate Bushfires in Australia', which resulted in a commitment to explore mechanisms for improved information sharing about bushfire management and "better coordination between police, fire and emergency services to engage in targeted prevention programs and share information in investigating crimes". The Forum echoed hyperbole about "the worst day in Victoria's history", along with expressions by the Prime Minister and other politicians that arsonists are "evil", guilty of "murder on a grand scale", something for which "there is no excuse ... none at all". "What do you say about anyone like that — there are no words to describe it other than mass murder."

Mr Rudd claimed that ""We are left speechless at the thought and the possibility that some of these fires may have been deliberately lit" - a speechlessness that didn't last very long - and indicated that "Something which the nation must now attend to as a matter of grave urgency is the problem of arson ... Let us attend to this unfinished business of the nation and come to grips with this evil thing".

Given that bushfires are not unusual occurrences (and deficiencies in institutional cooperation have been recurrently highlighted, for example in the 2006 Canberra Firestorm coroner's report on the 2003 ACT bushfires) one might wonder why mechanisms haven't been developed in the past and whether the results of the no-doubt heartfelt commitment will be any different to the past.

The National Forum, and associated media releases at the national and state/territory level, gained attention for statements about "drafting model laws for stronger, more consistent arson offences with penalties of up to 25 years for bushfire arson causing death or serious harm". Those statements are an expression of 'security theatre', embodying a politics of demonisation and reassurance that is arguably out of kilter with the realities of who engages in arson and why they did so.

The author's 'Burning With Indignation: Arson, Law and the 2009 Victorian Bushfires' at pp35-45 of 15(1) Local Government Law Journal (July 2009) thus questioned the effectiveness of new laws to double the time in prison for adults convicted of deliberately setting bushfires, given that the psychological problems of some bushfire arsonists mean that deterrence is probably not significant. Spiffy new laws will not, of course, deter 'experiments with fire' involving children.

Much of the attitudinising about stronger penalties is inflamatory. It does not serve to meaningfully inhibit future bushfire arson. We might ask whether there is a need to differentiate between bushfire and non-bushfire arson, and whether existing criminal law is adequate.

We might also want to ask some tougher questions, including whether land management regimes should be changed to, for example, assist more regular burning off around the outskirts of rural towns and facilities (the ACT Coroner's Report noted complaints of smoke pollution - echoed in the current Victorian Royal Commission hearings - and criticism that burning off in the vicinity of Canberra had been deferred because smoke would reduce the delights of the Governor-General's garden party) and ensure better road access to high-risk rural and urban-fringe areas.