Bushfires: Inquiry feasible only if the states play ball

A constitutional lawyer warns the royal commission’s look at state and federal disaster responsibilities will work only if states join in.

University of Sydney constitutional law expert Anne Twomey. Picture: Tomasz Machnik

One of the nation’s top constitutional lawyers has warned the royal commission’s examination of state and federal responsibilities could be hampered by state reluctance to participate.

The royal commission proposes to look at how states and territories might request federal assistance, what powers the federal government might have were it to declare a state of emergency, and how that declaration might ­interact with state and territory emergency management.

Scott Morrison said on Thursday “the royal commission will enable the commissioners to look at this issue very much from the position of the national perspective”.

“And that national perspective … will look at what are the arrangements when you have a national state of emergency or disaster ­declared? There is no such power,” he said.

But University of Sydney constitutional law expert Anne Twomey said the royal commission would need to establish “what it means for the commonwealth to declare a state of emergency”.

“That’s just words. What sorts of powers are you intending to trigger by doing that?” Professor Twomey said. “The terms of reference are very vague.”

She said the royal commission could be undone by state governments who refused to appear.

“There are uncertainties about the extent to which one jurisdiction can force the officials of another to appear. That can lead to issues when you try to get evidence,” Professor Twomey said.

The question was raised ­recently after officials from the Murray-Darling Basin Authority refused to appear before a South Australian government royal commission. The issue was not resolved after the case was dropped.

“The real problem would be if the commonwealth tried to use ­coercive powers or force politicians to appear before it,” Professor Twomey said. “This raises parliamentary privilege issues.”

Monash University constitutional law expert Luke Beck said despite the inquiry it was possible the government may have already acted unlawfully in calling out the Australian Defence Force. “There’s serious uncertainty about the federal government’s scope to intervening in natural disasters like this,” he said. “It’s very clear that the federal government has the power to send in the troops if there’s an insurrection or rebellion … but there’s nothing about natural disasters.”

Associate Professor Beck said section 119 of the constitution, supported by the “implied power of nationhood” could allow troops to be deployed within Australia, but a definitive ruling was unclear and could result in legal action against the federal government were it to deploy troops in response to a disaster again.