Have we forgotten coronial inquests this fire season?

Two states have questioned whether it is necessary, and one of Australia's foremost bushfire experts, Kevin Tolhurst, has said we should implement the recommendations of past inquiries instead of holding another one.

But even if we do not have a royal commission, as things currently stand we are probably going to have a number of large coronial inquiries that are going to cover much the same issues anyway.

Under state and territory laws, every major fire and every unusual death must be investigated by that state or territory's coroner. In past years we have had many bushfire inquests in Australia, large and small.

What is probably the largest fire inquest in Australian history was undertaken by ACT Coroner Maria Doogan into the bushfires that burned into Canberra in 2003. It took three years and heard evidence from 95 witnesses over 103 sitting days, with 28 barristers representing various interested parties. Its report runs to two large volumes plus appendices, and is still available on the ACT Courts website.

The ACT Coroners Act is broadly similar to the legislation in all states and the Northern Territory. A coroner is required to investigate the "manner and cause" of an unexplained death; and to investigate "the cause and origin" of a fire, as well as the "circumstances" that surround the fire. A coroner may also make comments about what they have found in their investigations.

That gives scope for a wide-ranging inquiry into both the deaths that have occurred in the bushfires to date, the way each fire began and how they were fought. In the past, coroners have investigated issues as diverse as fuel loads, the weather, hazard reduction, arson, the use of aircraft, firefighter training, adequacy of firefighting equipment, public warnings, media information to the public, and just about anything else that has some rational connection to how a fire may have broken out and spread.

Importantly, coroners have investigated exactly how each fire was fought. What strategies were adopted? Were they appropriate? How were they carried out? What problems arose in carrying them out?

It is likely that communities affected by bushfires this season will have questions they want answered about strategies and tactics used to fight their fires. There is already public debate about how the fires near Balmoral in NSW were fought - for example, did the RFS withdraw resources on the fateful day the fire struck? This is exactly the sort of issue that a coroner would investigate.

There have been many individual fires. Each would need its own coronial inquiry, though some might be much shorter than others. These inquiries would look at more specific issues than the Prime Minister's proposed royal commission would investigate. But in most of these inquiries there will inevitably be common themes that need to be looked at - use of aircraft, for example, or access to resources. These are also the sorts of issues the proposed royal commission would investigate nationally.

A key feature of this year's crisis has been the way the NSW and Victorian fires impacted on each other. A NSW coroner would have to investigate a fire that began in NSW; a Victorian coroner would have to investigate how that fire spread across the border into Victoria. In doing so, the Victorian coroner would probably want to look at how it began in NSW. Without some sensible co-ordination, we are going to have overlap between inquests in different states.

Precisely this problem arose in the 2003 ACT coronial inquest. One of the major fires began in NSW at a place called McIntyres Hut. For nine days it burned exclusively in NSW and was the responsibility of the NSW Rural Fire Service. Then, on January 17, 2003, it escaped its NSW containment lines, and on January 18 burned across the ACT border into the western suburbs of Canberra.

There was a short NSW inquest into the fire, but the major investigation was done by Coroner Doogan in the ACT. The NSW authorities were represented at her inquest, and she heard evidence from the senior NSW officers who had fought the fires including Commissioner Koperberg himself. Although she cautiously refrained from making formal findings about the cause and origin of the NSW fire, the Supreme Court decided that she had power to do so as an ACT coroner, as well as to comment on the way the Rural Fire Service of NSW had fought the fire.

Overlap between individual inquests is also inevitable in relation to wider issues. For example, firefighting aircraft are pooled nationally. Defence forces were deployed nationally. Do we want a NSW coroner and a Victorian coroner to look at those issues separately, perhaps coming to different conclusions?

The need for a national approach to issues like aircraft, the role of defence forces, availability of interstate and international fire fighters, the role of climate change and its implications for future fires, and many other nationally focused questions, means that a national inquiry might make more sense than having issues addressed separately in a number of state coronial inquiries.

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The states and territories could bypass coronial inquiries with specific legislation overriding their own Coroners Acts. Alternatively, if there were a national inquiry that explored individual fires, a state coroner might rely on the discretion already given to coroners in their legislation not to hold an inquiry into a particular fire or death if other inquiries are going to investigate those fires. In Victoria, the Premier has already said there will be a state inquiry; but cabinet has not yet decided what that will look like.

One possibility for the Prime Minister (in conjunction with the states and territories) is a national royal commission that also looks into individual fires. That has the advantage that the national issues would be looked at in context. Anybody can make general statements about how aircraft might be better used, for example. But the use of aircraft and their limitations comes into much sharper focus, with much more relevant lessons learned, when it is examined in the context of how aircraft were used in a particular fire. The same is true of any national issue emerging from this season's bushfires.

However, that would make the royal commission so vast and so unwieldy that it would take years to look into anything.

The Royal Commission into Child Sex Abuse offers one possible model for how a national bushfire royal commission might operate. It had a number of commissioners, who held individual hearings on a large number of case studies in cities and towns across Australia. The case studies were the subject of individual findings by individual commissioners. Collectively, the case studies informed further inquiry by the commission as a whole into systemic issues that arose time and time again. In that way, it was able to investigate national issues in the individual contexts in which they had arisen. Even so, it still took many years to complete its inquiry.

Whether they be inquests or a royal commission, one of the most difficult things to manage is the task of inquiry itself. It is not a criminal trial. Nobody will go to jail because of its findings. Nobody will be paying damages in compensation as a direct result of the findings of a coroner.

But that is easy to say and much harder to carry out in practice. Opponents of a royal commission have pointed to the impact of these inquiries on the people who actually have to fight fires and make hard decisions in the moment.

Take the 2003 ACT Coronial, for example. Coroner Doogan heard from individual firefighters and team leaders to find out how each of the four separate bushfires had ignited and how they had spread. She asked them questions about how they had fought the fires day by day. Each was cross-examined by counsel for other parties on these issues. Their evidence was examined by expert firefighters who gave opinions about the firefighting effort and whether the strategies were sound.

All of this evidence and opinion was essential in order to find out the cause and origin of the bushfires and the circumstances surrounding them, as the Coroners Act required. In the case of some senior ACT fire service managers, Coroner Doogan went further, as the Coroners Act allowed, and made specific adverse comments about their actions, based on the evidence she had heard. The Supreme Court found that this was the Coroner's proper role if the facts justified it, and that almost all her comments were open to her to make on the evidence.

The harm from unjustified comment is obvious. The Supreme Court found that Coroner Doogan handled the task of inquiry properly in relation to the 2003 bushfires. Any coronial inquiries into this season's bushfires need experienced coroners, and a national royal commission should be headed by an experienced retired judge, to ensure that adverse comment is made only where the evidence supports it.

There is force in what opponents of a national royal commission are saying. Yet important questions are being raised about how individual fires were fought. This makes it likely that coronial inquiries will have to look into those fires. In doing so, they are bound to ask questions about wider national issues like access to water-bombing aircraft, use of the Defence Force, and hazard-reduction before the bushfire season began - possibly even the politically fraught question of the role of climate change in the severity of these fires. If we are going to have to have these coronial inquiries anyway, might it make sense to do so on a more co-ordinated national basis?