Developing ‘resilient communities’ that ‘share responsibility’ – issues for law. Dr Michael Eburn ANU College of Law The Australian National University CANBERRA ACT 0200 P: E: Adelaide, 18 July 2013

The National Strategy This presentation will consider two questions: –Who can ‘share responsibility’? and –What’s the ultimate goal? 2

These questions are important to law Law can be used to assign or allocate responsibility before the event, but to who? Law can attribute responsibility after the event, but needs to have a standard by which to measure the outcome. 3

Who can share responsibility? Only those with legal standing: –Natural persons (you and I); –Corporations; –Governments; –Not ‘communities’. 4

Responsibility is always individual “Group responsibility is “collective” in the sense that it falls on the group as an abstract entity [but] … there can be no such thing as collective responsibility as there can be no abstract entities” (Cane, P, 2002, Responsibility in law and morality, (Hart: Portland, Oregon) p. 171). 5

Does the share of responsibility reflect Capacity: “… there are some areas in which the state … will be more capable than individuals... the state should therefore assume greater responsibility for working to minimise those risks.’’ (2009 Victorian Bushfires Royal Commission, Final Report). Or, trust? 6

What’s the aim? What’s the ‘measure of success’? A safe community? An informed community? No-one dies? Death’s are minimised? “cost-effective, evidence-based disaster mitigation…” (COAG, 2003, Natural Disasters in Australia: Reforming mitigation, relief and recovery). 7

The aims are political “While some … see politics as expediency, it is integral to the process of securing defensible outcomes. We are unable to combine values, interests and resources in ways which are not political”. (Davis, Glyn et al., 1993, Public policy in Australia (2nd ed, Allen and Unwin, Sydney), p 257) 8

The aims are political “While some … see politics as expediency, it is integral to the process of securing defensible outcomes. We are unable to combine values, interests and resources in ways which are not political”. (Davis, Glyn et al., 1993, Public policy in Australia (2nd ed, Allen and Unwin, Sydney), p 257) 9

Consider… The 1:100 year flood standard (see Wenger, C, Hussey, K, Pittock J, 2013, Living with floods: key lessons from Australia and abroad, National Climate Change Adaptation Research Facility, Gold Coast, pp ). 10

‘Costs blow out more than $40m…’ “FLOOD mitigation plans for the Brown Hill Creek catchment area have … ballooned from $105 million to $147 million … while the five catchment councils continue to debate whether a dam is the best option to protect 7000 homes from flooding.” (That’s $21000 per house). Emma Altschwager ‘Costs blow out more than $40m for Brownhill Creek flood mitigation plan’ Eastern Courier Messenger 4 September

Was this the appropriate reaction to Black Saturday? “What can be done to ensure that so many lives are not lost, that so much devastation is not caused, in such bushfires in the future.” (2009 Victorian Bushfires Royal Commission, Chairman’s Opening Remarks, 20 April 2009; emphasis added). 12

Conclusions To use law to give effect to the National Strategy we need to: –Understand what we mean and intend by ‘community’; and –Understand that the preferred outcomes to any risk is political. 13

Questions? Comments? Michael Eburn P: E: 14