THE BAR ASSOCIATION OF QUEENSLAND
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Issue 98: December 2024
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Quarterly Essay 92

Author: Alan KohlerPublisher: Schwartz MediaReviewer: David Topp

Housing. A topic dear to the hearts and close to the minds of this profession. Either as owners of homes. Or as recipients of briefs pertaining to peoples’ homes. Or both. The varieties of housing related briefs are many. Land titling litigation, mortgagee in possession actions, equitable claims to real properties registered in other persons’ names, defective performance of domestic renovation contracts and executors taking action to evict hold-overs in a deceased’s house, post-death, are but five examples of housing themed litigation. I’m sure readers could conceive of plenty of others.

The cost of home ownership, along with cost of living concerns, generally, are the two primary focal points of politicians and commentators at present. Into the mix comes Alan Kohler’s contribution: THE GREAT DIVIDE: Australia’s housing mess and how to fix it (‘Great Divide’).

Kohler begins by citing the approximate 3.5 times household income cost his parents paid during 1951 for their first home. Which ratio also applied 30 years later when he and his wife purchased their own first home in 1981[1]. However, by August 2023, the median Australian house price had risen to $732,886, being 7.4 times annualized average weekly earnings[2]. This extent of disparity forms the ‘basis’ of Great Divide, namely, that ‘the high price of housing is undermining social cohesion and the proper functioning of the economy and the nation … [and] has distorted Australian society over the past twenty-five years’[3].

Has it though? Distortion of society and undermined social cohesion are strong charges to make. Compared to the United States over the last quarter century, one could argue that those statements much better describe that nation than ours. Australia has, after all, been spared the 2020 Black Lives Matter nationwide riots after George Floyd’s death, shooting massacres too many to mention and the January 6, 2021 invasion of Congress. Even the 2024 cause de jour – university campus arguments over the current Gaza Strip conflict – are being conducted on this side of the Pacific without the violence afflicting varsities state-side. ‘Sydney [as opposed to a US city] is the second-most expensive place to buy a house on Earth, after Hong Kong’[4]. Yet our social cohesion is demonstrably greater than America’s.

More on the politics later. Turning now to the facts and historical aspects of Great Divide – easily its strongest suits – Kohler cites the year 2000 as marking the crossing of the Rubicon, away from the relative closeness of the income/house price ratio he and his parents both observed as first homeowners to the contemporary great divide that made inevitable the way in which Kohler entitled his Essay. Four turn-of-the-millennium phenomena are cited for the ‘supercharging’ of housing demand between 2000 and 2023, namely, the Howard Government’s 50% capital gains tax discount, re-commencement on 1 July 2000 of the First Home Owner Grant, 200 basis points worth of interest rate cuts between February 2001 and February 2003 and a tripling of net migration between 2003 & 2009 which was not matched by new housing supply[5]. In turn, because most immigrants rent at first, combined with lower rates of homeownership among extant Australians, this ‘has exacerbated a rental property shortage that has been bubbling since immigration doubled in 2006’, creating a national capital city record low rental vacancy rate of 1% compared to a ten-year average of 2.8%[6].

18 pages of the 86 page Essay are devoted to Kohler’s in-depth demand side analysis, preceded by 24 pages of explanation of 3 broad supply side crunches which create price pressures at the other end of the traditional supply and demand equation. The three crunches are public housing, Australian preferences to coalesce in the major cities and the roles of state and local governments.

Turning first to public housing, Kohler cites two failed referenda: that of the Chifley Government in 1948 seeking to give the federal government permanent control of house prices and rents, which failed by 59.34% to 40.66%, and Gough Whitlam’s December 1973 reprise seeking to control all prices, not just housing; ‘although Whitlam managed to increase the Yes vote to 43.81 per cent [it was] still nowhere near enough’[7]. As an aside, Great Divide just so happens to be the immediate Quarterly Essay published after Professor Megan Davis’s Voice of Reason on Recognition and Renewal, also reviewed by this writer in these pages[8], into the then upcoming Uluru Voice From the Heart referendum, which, at 60.06% to 39.94%[9], was lost by a very similar margin to Chifley’s in 1948. Students of history will, of course, know that the third of the ‘big 3’ prime ministers during the period between the end of World War 2 and 1975 was Robert Menzies. By the time Menzies and his social services minister Sir William ‘Bill’ Spooner retired in the mid 1960’s, ‘the ideal of home ownership had been elevated to an almost religious status…and the destruction of public housing was well underway’[10], Kohler going further by strongly criticizing the way Menzies folded housing into social services: ‘It doesn’t belong there: housing is not welfare, it’s an economic right’[11].

That 67% of our population live in the capital cities[12], along with a generalized eschewing of moving out of cities into regional areas[13], will always make matters on the supply side of the equation ‘very hard indeed’[14]. And this is before Great Divide turned to the next hurdle: the role of state and local governments of which, by default {due to land use not being mentioned in the Constitution} take up the policy reins. Without zoning, ‘and the restriction on land supply that comes from it, housing would be an average of 36.8 per cent cheaper’ in Perth, Brisbane, Melbourne and Sydney according to a Reserve Bank commissioned report directed to the impact of zonings on house prices[15]. Kohler explains how the post World War 2 ubiquity of cars due to their new-found affordability meant that cities could afford to stage houses on large blocks, 20-30 kms away from CBDs, in all directions. The result is to have placed planning and zonings ‘in the hands of local councils elected by the local residents, who became NIMBYs as soon as they moved in. Serious medium density was out. On top of the control exercised by councils, private ownership… meant it was impossible for developers to get hold of enough land to build more than four units at a time, and still is’[16].

And not just in the inner cities is the search for suitable land beset with difficulties. ‘Minister under fire for slow pace of reform’ is an attention grabbing title of any news report. However, the anger cited was not directed towards state and federal housing ministers. Rather, it was from the Australian Conservation Foundation, Birdlife Australia and the Wilderness Society, amongst other groups, towards Federal Environment Minister Tanya Plibersek for alleged failure to deliver on promises to create an Environment Protection Agency to handle development decisions and enforce regulations, national standards to rule out damage to critical habitats and strengthening of the Environment Protection Biodiversity Conservation Act[17]. Be those arguments as they may, a natural concomitant effect of that list of demands being met in full is a lessening of lands capable of being released on which to construct new homes on and beyond the fringes of major cities.

Great Divide does not delve deeply into this particular policy conflict, apart from a tangential, though, of course, completely correct, observation that ‘…the geographic wealth gap is being widened by climate change, as floods and bushfires make living in large parts of the country uninsurable and financially crippling, but many families have no choice but to stay where they are because those areas are low-priced and they can’t afford to move’[18].

This particular notion was created in Great Divide wholly independently to that postulated in your present reviewer’s Brisbane Breached, The Story of a Drought Defaulted Floodplain (‘Brisbane Breached’): ‘Rocklea, an inner-southern suburb, is … serviced by a direct railway line into the inner city, making it… an … attractive residential proposition. In addition, Rocklea is in close proximity to public hospitals … For one of the … Rocklea residents … interviewed, the fear of moving further away from medical care seemed a greater risk than living in the same house so badly damaged in both 2011 and 2022, even when forced to convert their garage to a makeshift living room and kitchen… The inferential trade-off for that interviewee being that, to sell and purchase something genuinely floodproof, would involve moving much further away from hospital care than the actually quite conveniently located, in all senses bar flooding, Rocklea … The dilemma is palpable. Permanently removing 500 houses forever…to add to the 112 homes in Rocklea already discontinued … means 612 persons at least – plus their family members – added to the increasingly desperate pool of rental and mortgage applicants in a market as competitive as Queensland’[19].

Haplessly flood-prone suburbs like Rocklea, Goodna and the almost sadistically named Depot Hill – for a hill, it is anything but. Rather, it is a low-lying outer Rockhampton suburb on a natural Fitzroy River overflow floodplain – ought never have been built on in the first place. However, they were and, hence, remain established suburbs in which houses, businesses and schools operate, making complete levelling and removal of their many occupants impossible.

Proving that, for the supply side of the land and housing equation, it is not only local government zonings and not in my backyard animus towards higher density living that are hurdles to supply constraints. There are many many more.

Kohler’s thesis is that it will be ‘impossible’ to return to the status quo of his parents’ era ‘without purging the idea that housing is a means to create wealth as opposed to simply a place to live’[20]. He explicitly argues that ‘[T]o achieve anything in life you have to aim high … the aim must be to return the ratio to three to four times average weekly earnings, as it was twenty-five years ago’[21]. How then to achieve such a goal? Especially, one as lofty as that? And even more so when, based on the current average full-time adult wage of $99,174.40 per annum, returning to the turn of the millennium’s house price-to-income ratio would require the latest national median house price of $740,668 to have to halve to $370,000[22].

To merely state that proposition highlights its obvious impossibility. Something Kohler admits in the immediate next sentence: ‘…that’s not going to happen, of course, and it wouldn’t be a good idea even if it could’[23].

Rather, his suggested avenue to this goal is to increase the average full-time adult wage to $210,000, annually, so as to re-create the 3.5 times ratio[24]. At 4% growth in incomes per year, that would take about 18 years. Therefore 15-20 years of static house prices, co-existing with sustained wage growth of 4% per year would be required to restore that particular balance. ‘[T]hat sort of timeframe might also get Australians out of the habit of thinking that house prices always rise and that housing is the best way to build wealth’[25].

‘Might’ being the operative word. Especially, as how such a change away from this mindset would, of itself, create a concomitant failure of any form of rise in housing prices on the ground over the next 15-20 years. No causative factors were nominated. Besides, a desire to find a place to live and pay, accordingly, is, after all, an instinctive feature of the human condition. As is the subsequent desire to maximise the price received when the sale side of the property acquisition equation occurs. So long as other investment vehicles have drawbacks of their own – the unavoidable volatility of shares traded on stock exchanges and the erosion of the real value of funds earning bank interest only in these days of high inflation – the ‘habit of thinking that … housing is the best way to build wealth’ seems less than a habit than a concession to empirical reality.

Ironically, Kohler quotes Chinese President Xi opining in the same way: ‘He’s been banging on … for five years, saying that housing is not for speculation but for living in, but no one seems to be listening in China’[26].

If a leader who wields such immense power to the exclusivity of all others like Xi is not being listened to, what hope does a Prime Minister in democratic Australia – with a national history of dissent towards government and a free and open press only too willing to so engage – have to convince the populace that Australians must be disabused out of the habit of thinking that house prices always rise and that housing is the best way to build wealth?

In any event, Kohler answers his own question by pointing to the only phase of Australia’s history of unchanged house prices for a period as long as the 15-20 year time period he prescribed: 1930 – 1949, due to the Great Depression and then the period of price controls in World War 2[27].

A repeat of the 1930s depression and/or a third world war does seem a rather high burden to bear to achieve a holy grail of returning house prices to 3.5 times annual earnings.

Admittedly, no such case is made. Solutions actually postulated in Great Divide are to cut the CGT discount to 25%, limit negative gearing to new builds and to link immigration rates to the capacity of the Australian construction industry. On the supply side, pressure on councils is oft-mentioned, including a suggestion by demographer Simon Kuestenmacher to force all local councils to meet a quota of medium-density housing approvals, failing which money would be taken from those councils. ‘And if they don’t meet it for two years in a row, sack them’[28]. Still though, there’s much in the way of hope over reason in these entreaties. For a start, the constitutional efficacy of how such penal-style laws against councils failing ‘to take one for the team’ could be enacted then enforced was not explained. Not only that, it actually seems that the more challenges local councils come under, the more emboldened they are to resist; not three months after Great Divide’s publication, The Australian’s Margin Call reported that James Packer, one of this nation’s wealthiest – and most well-connected – people, ‘is still battling on with his $100m Edenville Corio project, a property play anticipated for suburban Geelong. That one’s questing through reams of red tape in the Victorian Civil and Administrative Tribunal owing to repeated rejections by local planning authorities’[29].

Proving that, if James Packer gets stymied in such ways, what hope do run of the mill property developers, already facing blowouts in the costs of labour and materials, have?

The Melbourne based Kohler goes on to cite his city’s many ‘Victorian or Edwardian terraces and villas [that]…can’t be pulled down for heritage reasons’[30]. The Brisbane equivalent is the way in which real estate agents love to promote the magic words ‘post-war’ to describe houses built post-1945, due to their substantially greater ability to be knocked down. As opposed to pre-1945 Queenslander style houses which are heritage protected. Meaning that owners of the latter cohort of properties must spend large amounts of money to maintain and improve their homes due to the lack of easy ability to knock down and re-start. The opportunity cost being the consequential directing of resources of the building industry, both human and capital, to renovations rather than new-builds. In this humble reviewer’s opinion, controversial as this may sound to some, if the greater good of housing an increasing number of homeless persons is to be better achieved, substitution of renovation by creation would be a good start. Heritage may be dear to some. However, it comes at a cost, and not just to the direct user but society as a whole. The very society whose cohesion Kohler expressly stated was being ‘undermined’ by the present state of housing prices.

Kohler concludes Great Divide this way: ‘It won’t be enough simply to restore the amount of housing construction to what it was before the pandemic, as the federal government is now aspiring to do’[31]. Rather, the restoration of the 3.5 incomes to prices ratio ‘will require active, and serious, government intervention’[32]. Which, in turn, will depend on which governments – at all 3 levels – members of the voting public, with their permanently differing and conflicting vested interests, elect, re-elect or depose every 3 and 4 years.

Meaning that the genie that escaped the bottle back in 2000 will remain elusive. Only time will tell if it can be recaptured, wholly or even in part, to attempt to alleviate and recalibrate during the second quarter of our current century.

[1] Great Divide, at p. 1

[2] Great Divide, at p. 2

[3] Great Divide, at p. 76

[4] Great Divide, back cover blurb

[5] Great Divide, at p. 52

[6] Great Divide, at p. 13

[7] Great Divide, at pp. 25 & 26

[8] https://www.hearsay.org.au/book-voice-of-reason-on-recognition-and-renewal/

[9] https://results.aec.gov.au/29581/Website/ReferendumNationalResults-29581.htm

[10] Great Divide, at p. 31

[11] Great Divide, at p.32

[12] Great Divide, at p.37

[13] Great Divide, at p.38

[14] Great Divide, at p.41

[15] Great Divide, at p. 43

[16] Great Divide, at p. 45

[17] Mike Foley ‘Minister under fire for slow pace of reform’ The Sun Herald 21 April 2024, at p. 17

[18] Great Divide, at p. 5

[19] Brisbane Breached, at pp. 155, 156, 166 & 167

[20] Great Divide, at p. 4

[21] Great Divide, at pp. 76 & 77

[22] Great Divide, at p. 77

[23] Ibid

[24] Ibid

[25] Ibid

[26] Great Divide, at p. 4

[27] Great Divide, at p. 77

[28] Great Divide, at p. 79

[29] Yoni Bashan Margin Call: ‘Packer in new play in property’ The Australian, 2 April 2024, at p. 13

[30] Great Divide, at p. 81

[31] Great Divide, at p. 86

[32] Ibid

Author: Megan DavisPublisher: Black Inc. (imprint of Schwartz Publishing)Reviewer: David Topp

Your present reviewer has evaluated three titles for Hearsay during 2023, of which this is the third. Unintentionally, these three reviews have formed links in a chain: The White Elephant Stampede {“WES”} in June 2023, a compendium of case studies of policy and project management failures; New Directions in Royal Commissions & Public Inquiries {“New Directions”} in September 2023 and now Megan Davis’s Quarterly Essay of earlier this year, ‘Voice of Reason on Recognition and Renewal‘ {“Voice of Reason”}.

The exact linkages will be explained at the conclusion of this review. Necessarily, I start with Voice of Reason, itself. Voice of Reason is volume 90 of the highly successful Quarterly Essay series of 25,000 words ‘significant contributions to the general debate‘.

Consistently with the ‘general debate‘ ethos, Voice of Reason was released in mid-2023, timed to coincide with the ‘business end’ of the campaigning both for and against the 14 October 2023 Voice referendum, the result of which is now well and truly certain.

Indeed, with the benefit of knowing the outcome and having taken in the vast quantity and quality [sometimes dubious] of the arguments ventured by both sides in what became the debate of 2023, Voice of Reason is even more worthy of being read now, post-referendum, than by the pre-referendum audience towards whom it was undoubtedly directed.

University of NSW Professor of Constitutional Law, Megan Davis, will be well known to most readers of this review, having been one of the five most prominent Indigenous proponents under the official ‘Yes23’ campaign banner along with Noel Pearson, Marcia Langton, Thomas Mayo and Dean Parkin. Prof Davis was the first person to read out the Uluru Statement from the Heart in May 2017[1] when the concept was nascent. Voice of Reason begins by describing the genesis of the Voice as a ‘culmination of a twelve year project that commenced with … Julia Gillard’s Expert Panel on Constitutional Recognition of Indigenous Australians’ in 2011[2]. “Culmination” is an apt descriptor for the ‘form of recognition proposed … a constitutionally enshrined … Voice to the Parliament’[3].

Getting the government to listen, the lack thereof being ‘one of the most acute challenges for Indigenous Australia‘[4], is a primary theme of the Essay. From here, Prof Davis bases her advocacy for the Voice proposal: ‘Parliaments do not listen because they do not have to. Governments do not listen because they do not have to. Bureaucrats do not listen because they do not have to‘[5]. Prof Davis cites, as examples, the 1998 post High Court Wik decision native title negotiations, 2004 abolition of the Aboriginal and Torres Strait Islander Commission and the 2007 Northern Territory Emergency Response[6], adding that ATSIC was in fact one of many consultative bodies that emerged between the 1967 referendum {which conferred legislative power to make laws for Aboriginal people} to the present, only to have been abolished in the meantime. The National Aboriginal Consultative Committee, the National Aboriginal Conference and the Aboriginal Development Commission[7] are three others.

An identical argument, in reverse, was applied by Prof Davis to the creation, rather than removal, of a body: the May 2014 announced Indigenous Advancement Strategy, explained as an asset transfer of $534 million from the Indigenous Affairs budget to a new strategy body formed under the auspices of the Department of Prime Minister and Cabinet during Tony Abbott’s 2 year term as prime minister. A concomitant lack of requirement to consult before either abolishing and replacing or creating such bodies from scratch means, according to Prof Davis, that a ‘Voice cannot be truly independent or offer frank advice if it lives with the threat of abolition. It alters the efficacy of communication and dialogue if the existence of the mechanism is predicated on obsequiousness towards the state‘[8].

What then are the consequences of all, as Prof Davis described it, the ‘chopping and changing of such mechanisms’? A ‘destructive impact upon communities: their funding, short-term and long-term planning, quality of health, social cohesion and hopes for the future’ is her answer[9]. Quite a strong critique: epithets like ‘destructive’ and ‘the exhausting of all hopes for her people’s future purely as a result of non-consulted removals of federally created administrative bodies seems a stretch. Even more so where, under a heading of ‘Child protection’, Prof Davis devotes 7 pages of her Essay to the multitudes of problems she personally reviewed over a number of years[10], none of which she attributed to abolition or creation of governmental bodies at the federal level, instead accepting that ‘child protection is a state responsibility’[11]. As to that seat of responsibility, Davis’s view, based on her having been commissioned by both the Queensland and NSW governments to independently review their own systems[12], was that ‘[T]here is no effective regulator. It is a closed system. There is no genuine consultation with the Aboriginal family or community’[13]. From which flowed a hope that an ‘enshrined Voice, one that is elected by communities, would have the status and power to paint a more fine-grained picture from the ground’[14]. With the Voice proposal on which we all, ultimately, voted on 14 October 2023 being expressly predicated on representations to the Parliament and executive government ‘of the Commonwealth’, the hope that a Voice could correct failures in state based and, therefore, not nationally uniform child protection schemes, was exactly that – a hope and, to be sure, a most heartfelt one – rather than a guaranteed result.

In his own quite robust at times critique of Voice of Reason, Victorian silk, Stuart Wood, went further than pointing out a mere demarcation of federal and state responsibilities so far as the Voice’s reach was concerned. Rather, Mr Wood KCs’ rejoinder to the ‘chopping and changing’ to which Prof Davis objected was that this is and always has been an ordinary incident of Australia’s democratic system, risking the placing of future generations into a ‘legal straitjacket’: ‘[F]uture parliaments should be able to abolish or amend special interest bodies as a matter of intergenerational equity and fairness … [and] implement the societal architecture appropriate to that generation’. Mr Wood goes so far as to argue that entrenchment of the Voice into the Constitution would deprive ‘future generations of the freedom to easily frame the country’s governance as they see fit’, making the proposal ‘intergenerationally inequitable and unjust’[15].

Respectfully to Mr Wood KC, clause {iii} of the proposed Section 129 to be inserted into the Constitution was ‘The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the … Voice …’. Including its ‘functions, powers and procedures’. Accordingly, the deprivation of ability to, in the future, frame and reframe the country’s governance, of which the Voice would have been but one of many myriad parts, seems quite illusory. 

This having been said, constitutional entrenchment is exactly that: once voted into existence by a successful referendum, only a referendum of rescission could thereafter see the Voice abolished. Prof Davis recorded her participation in meetings with then newly minted Prime Minister Malcolm Turnbull, who ‘set up a new process, led by what he called the Referendum Council’ in late 2015 and early 2016 ‘to undertake deliberative dialogues on recognition’[16]. Those processes led to the National Constitutional Convention at Uluru in May 2017[17] which led to the ‘sequence’ of ‘Voice, Treaty, Truth’[18]. The Referendum Council summarised as ‘the logic’ of constitutional entrenchment over mere creation by legislation as ‘reassurance and recognition that this new norm of participation and consultation would be different to the practices of the past’[19], with a legislated version only being ‘subject to the whims of politicians who hubristically believe they know better and can speak on behalf of Aboriginal people’[20].

It is therefore appropriate at this stage of the review to cite Turnbull’s own perspective, albeit, prepared with the benefit of post-referendum 20:20 hindsight. Turnbull rhetorically asked did Yes23 lose because Opposition Leader Peter Dutton opposed? Or because Anthony Albanese failed to secure bipartisan support or provide a detailed design of the Voice beforehand? Or was ‘the result a testament to the power of misinformation in the social media age?’[21].   

In answering no to all of these, Turnbull returned to the same constitutional entrenchment ‘logic’ Prof Davis quoted in her Essay and, in so doing, countered with some realpolitik logic of his own:

‘… I did not support entrenching a voice in the constitution in 2017 when it was formally proposed … by the Referendum Council and neither did anyone else in my cabinet. We said the proposal was not “desirable or capable of winning acceptance in a referendum”… for those like me of an essentially republican, egalitarian mindset, having any institution in the constitution the qualification for which was other than Australian citizenship was hard to accept. After all, wasn’t that our case against the monarchy?’[22].

Adding that ‘the most fundamental objection’ was a lack of belief that the proposal was capable of being carried in a referendum, Turnbull bemoaned the ways in which Voice ‘advocates[’] … confidence in its success was uncluttered by the slightest practical experience of conducting a referendum or election campaign’[23].

Turnbull, nonetheless, agreed with Prof Davis about the ‘objective of placing a Voice in the constitution’ being ‘to ensure that it could not be abolished … nor could the scope of its advice … be curtailed’[24]. Turnbull also cited the cessation of ATSIC. Additionally, Turnbull spoke, perhaps not identically but congruently with Davis’s anti-legislated only Voice concept, by opining ‘I very much doubt establishing the Voice first would have made the critical difference. After all, once established, it may not have been successful or effective. And it would have meant any referendum would have to wait for a second, or even third term, given the time it would take to negotiate and legislate the form of the Voice’[25].

Though, in what appears to be a subtle dig against Prime Minister Albanese’s constant and consistent eschewing of any need to provide ‘detail’ of what the Voice would look like, Turnbull ended his above-cited criticism of the legislate first notion with the following ‘but’:

‘But once it was set up, at least yes campaigners would have been able to point to an existing institution when they were asked what the Voice would look like’[26].

Prof Davis was firmly in support of ‘deferral of detail’ to Parliament as ‘a normal approach to constitutional amendment … because principle is for the Constitution and detail is for the Parliament’[27]. In light of the no campaign not only prevailing, but ‘winning’ with 60.06% of the national vote[28], that otherwise accurate statement of principle made by Prof Davis in mid-2023 has been rendered very contestable, now, especially, given this rejoinder by Turnbull:

‘It is a perfectly good lawyer’s answer to say that Parliament can be trusted to establish the Voice, and you can point to other provisions of the Constitution which give the Parliament power to legislate on numerous subjects without spelling out what that legislation should say. But we live in a time when trust in politics and politicians is low. Nobody seemed to remember how effective the “you can’t trust politicians” campaign was against the 1999 proposal to have a president chosen by a two-third bipartisan majority of parliament.’[29]

A similar practical difficulty point was made pre-poll by Andrew Lynch, Dean of Law at UNSW: ‘…getting a grip on the conflicting messages in the [Voice] debate is made harder by the fact Australians are rarely encouraged to engage with our Constitution’[30]. The rarity of which Professor Lynch spoke now appears, following the 1999 and 2023 outcomes, more likely to turn into an extinction.

In concluding her Essay, Prof Davis implored ‘[D]espite all that has happened to our people, we must dream of a better day’[31]. Turnbull’s final words were ‘Hope is inspiring, but unaccompanied with careful calculation, it is danger’s comforter and more often a signpost to glorious defeat than a hardscrabble victory.’[32]

Turnbull is correct. Hopes and dreams are one thing. Reality is often cruelly different.

Finally, turning to the links which commenced this review. Link 1: WES despaired the proliferation of white elephant projects having arisen reflexively in response to clamours made to western governments to ‘do something’ about almost every issue because governments can, supposedly, ‘fix’ everything. Link 2: A cognate theme arose in Dr Margaret Cook’s New Directions chapter critique of the Qld Floods Commission of Inquiry of 2011 & 2012, namely, ‘[W]hat society wanted was for science and government to remove the risk altogether, an unattainable goal‘[33], the ‘risk’ being a catch-all descriptor to encapsulate the myriad risks involved in basing a city on the banks of the inherently flood prone Brisbane River. Link 3: Voice of Reason. Professor Davis opined that ‘Australians have low levels of trust in their politicians, seeing them as too absorbed by adversarial parliamentary politics, internal leadership quarrels and internecine pre-selection spats‘[34], a point also made by Turnbull in his Guardian piece: ‘…we live in a time when trust in politics and politicians is low’[35]. These themes sharing New Directions’ editor’s citation of the potential of inquiries to overcome public distrust of government as an affirmative answer to that work’s sub-title of ‘do we need them? [public inquiries]’[36].

In truth, referenda are the ultimate public inquiry – the voting public has been inquired of, and their recommendation [or, in this case, lack thereof], quite unambiguously made in the case of the Voice:

‘….while tonight’s result is not one that I had hoped for, I absolutely respect the decision of the Australian people and the democratic process that has delivered it’[37].

[1] Voice of Reason, back cover blurb

[2] Voice of Reason, at 2

[3] Ibid

[4] Voice of Reason, at 5

[5] Voice of Reason, at 9

[6] Voice of Reason, at 9-10

[7] Voice of Reason, at 11

[8] Voice of Reason, at 11

[9] Ibid

[10] Voice of Reason, at 13-19

[11] Voice of Reason, at 18

[12] Voice of Reason, at 13

[13] Voice of Reason, at 15

[14] Voice of Reason, at 19

[15] Stuart Wood KC ‘Voice locks up future generations in legal straitjacket’ The Weekend Australian 7-8 October 2023, at page 15

[16] Voice of Reason, at 50

[17] Voice of Reason, at 53

[18] Voice of Reason, at 54

[19] Voice of Reason, at 57

[20] Voice of Reason, at 58

[21] Malcolm Turnbull ‘Australia’s constitutional history told us the voice referendum was unwinnable. Sadly, that was right’ The Guardian Australia, Mon 23 Oct 2023 01.00 AEDT

[22] Ibid

[23] Ibid

[24] Ibid

[25] Ibid

[26] Ibid

[27] Voice of Reason, at 57

[28] https://tallyroom.aec.gov.au/ReferendumNationalResults-29581.htm

[29] Supra, fn 21

[30] Professor Andrew Lynch ‘Inform yourself; vote with reason, not in ignorance’ The Australian 18 September 2023, at page 11

[31] Voice of Reason, at 66

[32] Supra, fn 21

[33] New Directions, at 142

[34] Voice of Reason, at 5-6

[35] Supra, fn 21

[36] New Directions, at 393

[37] LinkedIn page of Anthony Albanese, ‘Prime Minister of Australia at The Australian Government’, 14 October 2023

Editor: Scott PrasserPublisher: Connor Court PublishingReviewer: David Topp

On these pages during June 2023,[1] I reviewed the Scott Prasser co-edited White Elephant Stampede {“WES”} compendium of case studies of policy and project management failures.[2] This edition’s review is of another of Prasser’s co-edited works, this time of a topic even closer to barristers’ hearts: Royal Commissions and public inquiries broadly.

New Directions is not Prasser’s first rodeo. It is in fact his third foray into the topic, having commissioned Royal Commissions and Public Inquiries in Australia in 2006 and Royal Commissions and Public Inquiries: Practice and Potential in 2014. Former Court of Appeal and Supreme Court Justice, Margaret White AO FAAL, requires no introduction to readers of this publication, given her eminence in those roles. Yet, notwithstanding White’s many decades of experience, it was to Prasser’s 2006 work that she turned when asked in 2013 to helm a Queensland government inquiry into racing industry governance: ‘…Scott’s work … was pretty dog-eared by the time we had completed our task!’[3]

Why then has Prasser commissioned a third variant? As he explains, ‘ten royal commissions since 2013 – one every year until 2022’ have been established at Federal level {in addition to state and territory based counterparts}, causing esteemed national affairs commentator, Paul Kelly, to cite the ‘cult of the royal commission’ due to their current ubiquity.[4]

Interestingly however, the high-water mark for royal commissions was actually the 19 year period as long ago as 1910-29, when 54 royal commissions were appointed. The subsequent Great Depression then World War 2 correlated with a substantial decrease, which trend continued, thereafter, when, during ‘the long period of uninterrupted Coalition governments from December 1949-72, only seven were established.’[5]

The catalyst for a marked reversal was the 1972 election of the Whitlam government. Some 73 non-statutory, mainly policy advisory inquiries, as well as 13 royal commissions, were established. The ‘new-broom’ nature of Whitlam’s ascension to the Prime Ministership after 23 years in the political wilderness for his Australian Labor Party, previously, is cited by way of explanation. Appointing inquirers drawn from outside the government was seen as a means to promote faster policy development and to overcome any suspected baked-in resistance from the public service due to the prolonged incumbency of the previous conservative administrations[6].

Then, and not-dissimilarly to the way that profound Whitlamesque legislative reforms such as the Family Law and [as it then was] Trade Practices Acts were retained rather than repealed, the Fraser administration of 1975 – 1983 demonstrated similar eagerness for royal commissions and public inquiries, generally. As did administrations on both sides of the political fence, thereafter[7].

As mentioned above, state and territory governments are similarly active in this space. The most recent past President of the Court of Appeal, Walter Sofronoff, was retained by the ACT government to conduct what became a highly publicized inquiry into the decision making processes behind the Bruce Lehrmann rape prosecution. Similarly, Holmes JA, as the immediate past Chief Justice then was, was seconded from the Court of Appeal bench to helm the Queensland Floods Commission of Inquiry (‘QFCI’) following the 2011 Brisbane River flood event.

Indeed, Catherine Holmes has subsequently become a household name nationally due to the extraordinarily large amount of attention given to her Royal Commission report of July 2023 into the infamous ‘Robodebt’ welfare clawback scheme implemented and continued during the life of the former Coalition government, under various leaders, of 2013 – 2022. The publicity for which was compounded in no small part due to the many high-profile politicians required to give evidence and, in the case of some of them, their dogmatic reactions which only served to pour fuel on the proverbial fire:

‘Mr [Scott] Morrison, can I [Commissioner Holmes] just get you to stick to answering the question a bit more. I do understand that you come from a background where rhetoric is important, but it is necessary to listen to the question and just answer it without extra detail – unnecessary detail, if you could’[8].

Commissioner Holmes’ twin inquiries were but two of many examples of commissions of inquiry established after disastrous events, such as bushfires or mass casualty accidents. One such pretext for post-disaster inquiries is to provide what no court of law can: a forum for victims; a ‘cathartic, part of the process of healing’ avenue to be heard[9]. This very brief was followed by both the QFCI – public meetings were held in Grantham, Murphys Creek and 16 other flood-affected places across Queensland – and by the Robodebt commission which afforded family members of persons who suicided after having received Robodebt demand letters an opportunity for their anguish to be heard.

Returning to the QFCI, both your present reviewer and environmental historian, Dr Margaret Cook, published books following the 2011 floods,[10] though mine, sharing the QFCI’s release year of 2012, necessarily, could not cover it. I therefore took great interest in New Directions’ Chapter 6 authored by Dr Cook specifically into the QFCI, including Dr Cook’s account of the ways in which then premier, Anna Bligh, declared upon announcement: “[T]his is not a criticism of what we have done. It will identify what we did well and what we can do better”,[11] and then deputy premier, Andrew Fraser’s, claim that the QFCI ‘was about the “truth” and never about politics’[12], only for an in the result narrowing of focus ‘to a forensic examination of complex hydrologic and meteorological data that required detailed technical knowledge’[13] with a consequential shift of emphasis to an assessment of blame.[14]    

A marked example of the shift of focus observed by Dr Cook consisted of the differences between her opinions of the QFCI’s interim and final reports:

and

A similar juxtaposition was noted by Dr Cook concerning media reporting of the QFCI. Dr Cook’s primary work explained the way in which the Courier-Mail ‘offered more balanced reporting and largely focused on human stories and resilience’ post 2011. Whereas, its News Limited stablemate, The Australian, concentrated on allegations of wrongdoing against the Wivenhoe Dam engineers on duty during January 2011 and prevented analysis of non-dam systems that increased the flood hazard.[17]

Dr Cook’s conclusion that ‘[W]hat society wanted was for science and government to remove the risk altogether, an unattainable goal’[18] reflects the statement Prasser and his co-editors, David Gration and Bruce Kingston, made in WES that governments in western democracies are expected to ‘do something’ about almost every issue because governments can, supposedly, ‘fix’ everything.[19] The white elephant project the editors were citing in this specific page of WES was the mothballed Tugun desalination plant which, as the name suggests, was ‘the something’ the Beattie Government produced to meet the public demand for ‘action’. Action for what? Not action in response to the 2011 flood event. Rather, the polar opposite: action in response to its precursor phenomenon, the infamous millennium drought of 2000 – 2007, with consequential severe falls in Wivenhoe Dam’s water supply capacity.

The ‘only in Queensland’ irony is palpable.

Jokes aside, however, the inability of governments – and, for that matter, also, the judicial branch of government – to cure existential societal problems was made clear by the post QFCI processes. Dr Cook concluded that ‘the QFCI and public debate reaffirmed a faith in dams, if only they were operated differently, when the real problem facing Southeast Queensland is that many of us continue to live on a floodplain’.[20] This ‘faith’ was further affirmed by the outcome of the subsequently brought class action lawsuit which, at first instance, was a highly publicised victory for the cohort of plaintiffs. In delivering judgment, Justice Beech-Jones expressly confirmed ‘…the bulk of the evidence before the QFCI and its report were not tendered and therefore could not be considered by this Court. I have not read the QFCI report’.[21] On appeal, the NSW Court of Appeal began with high praise of His Honour’s methodologies in arriving at his victory to the class at first instance:

‘The trial judgment being divided into 15 chapters, it was inevitable in such a large factual case that findings would be made on specific issues which were then relied upon in the assessment of higher level issues … At each of these stages, the judgment meticulously cross-referenced both later and earlier findings, so that the trail of the reasoning was readily ascertainable. That was as true of the complex technical evidence and the computer simulations … of the factual circumstances as they occurred in January 2011. The tasks to be undertaken by this Court have been immeasurably assisted by the care and ultimately the clarity of the primary judgment’.[22]

Despite that auspicious beginning, however, it was, as Glenn Newton KC so succinctly noted in this publication’s most recent edition, a ‘judgment which the [NSW] COA then proceeded to overturn’.[23]

As an aside, there has been a complete lack of any discussion after Brisbane’s encore flood event of February 2022 of either a public inquiry or a class action lawsuit. It is submitted that the markedly differing dynamics of the rainfall patterns and the Wivenhoe Dam starting levels that were extant in the February 2022 ‘rain bomb’ event compared to January 2011 inform these omissions.

Chapter 14 of New Directions – Judge-led public inquiries in the United Kingdom – shared Dr Cook’s concerns about inquiries being too legalistic and adversarial. Other inquiries analysed in New Directions ‘misread their roles’ by becoming advocates for a particular policy or group rather than clarifying facts and proposing workable solutions,[24] produced reports that were regarded as being of poor quality and vacuous[25] or were appointed for politically expedient reasons to justify government decisions already made.[26]

Given all of these at times strong critiques of past inquiries, do we need them, as the sub-title to New Directions asks?

A partial answer to this emerges from the last mentioned critique above – retrospective justification of governmental decision making – not being an outcome universally guaranteed. Prasser notes the historical propensity for inquiries, both discussed in New Directions and not, to ‘often go their own way regardless of the constraints governments have sought to impose, including restricted terms of reference, tight reporting timeframes, limited resources, and specially selected members’.[27] An example of this ‘regardless’ phenomenon familiar to many political watchers in Queensland is the conversion of the initial 6 week predicted length of the Fitzgerald Inquiry into the multi-year behemoth that it became. The legacies of the Fitzgerald Inquiry to this state were brought back into contemporary attention by the 11 August 2023 passing away of former Premier, Mike Ahern, whose ascension to the premiership in 1987 over Sir Joh Bjelke Petersen occurred ‘amid the ructions caused by’ that Inquiry[28] and who, thereafter, promised to implement the recommendations ‘lock stock and barrel’.[29]

Ultimately, the answer to the rhetorical question of are inquiries necessary is yes. The potential of inquiries to overcome public distrust of government – being another of Prasser’s positive reasons for inquiries[30] – having been proven by the Robodebt commission’s outcome, both in terms of the damning nature of the findings and the potential for ‘another possible legal recourse: the pursuit of damages against the former ministers’.[31] Prasser’s final statement, in answer to his work’s rhetorical sub-title, that ‘no modern government can now do without them’[32] is therefore made out.

Margaret White’s launch remarks included her recollection, upon commencement of her racing industry governance inquiry of 2013, that ‘…we’ll need a couple of copies of Prasser’.[33] Quite so. New Directions ought be Exhibit 1 in all future public inquiry commissioners’ bundles as well as occupying pride of place in the briefs to counsel assisting.

Disclosure: The reviewer is presently in discussions with New Directions publisher, Connor Court, for publication of a book of his own.

[1] Hearsay Issue 92, June 2023

[2] White Elephant Stampede [Eds: David Gration, Bruce Kingston and Scott Prasser], Connor Court Publishing 2022

[3] The Hon Mrs Margaret White AO FAAL’s address at New Directions’ official launch, 18 April 2023

[4] New Directions, at 3

[5] New Directions, at 19

[6] New Directions, at 20

[7] New Directions, at 21-22

[8] Robodebt inquiry transcript 14 December 2022, at P-1773

[9] New Directions, at 131

[10] Respectively Tennyson Breach 2012 and A River With a City Problem 2019 {and re-released 2023}

[11] New Directions, at 128

[12] New Directions, at 142-143

[13] New Directions, at 127

[14] New Directions, at 130-131

[15] New Directions, at 132

[16] New Directions, at 132 and 142

[17] Dr M Cook ‘A River with a City Problem’ 2023 reprint, University of Qld Press, at page 186

[18] New Directions, at 142

[19] WES, at page 215

[20] New Directions, at 144

[21] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657, judgment summary, at [4]

[22] Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 (8 September 2021), at [6]

[23] Glenn Newton KC ‘The Uncertainties of Litigation and What Are The Alternatives?’ Hearsay Issue 92, June 2023

[24] The Royal Commission into Aged Care Quality and Safety: New Directions, at pages 253, 254 and 391

[25] The Thodey Review into the Australian Public Service: New Directions, Chapter 7 and page 392

[26] The NSW Government appointed Independent Local Government Review Panel of 2012-2014 which ‘recommended the wholesale forced amalgamation of a number of NSW councils’: New Directions, at pages 172 and 392

[27] New Directions, at 393

[28] Sean Parnell ‘Tributes for former Queensland premier Mike Ahern after his death at 81’, Brisbane Times, 11 August 2023

[29] Ibid

[30] New Directions, at 393

[31] Paul Kelly ‘Broken Trust and Revenge Politics’ The Weekend Australian 15-16 July 2023, at page 36

[32] New Directions, at 394

[33] The Hon Mrs Margaret White AO FAAL’s address at New Directions’ official launch, 18 April 2023

Editors: David Gration, Bruce Kingston and Scott PrasserPublisher: Connor Court PublishingReviewer: David Topp

White Elephant Stampede[1] {“WES”} is an edited compendium of case studies of policy and project management failures. A total of 10 are featured and extensively analysed, though, given Australia’s long and sorry history of such examples, sufficient content for an encyclopedia exists.

We barristers learn early in our careers that, when opening cases before judges and magistrates, a prudent counsel does so in a sober and restrained way. The risk inherent in a theatrical attention-grabbing opening is that witnesses never come up to the hyped proof once exposed to the sterile and intimidatory surrounds of a courtroom. This has the effect that the presiding officer, tasked with listening to and construing evidence feels underwhelmed by the evidence actually given. Whereas the exact same evidence, foreshadowed instead in an anodyne manner during an opening, will be more likely to be received on its merits. We know to under promise and over deliver, not the other way around.

The world of politics however is another world entirely. When a project is announced, great fanfare attends, with not just the responsible minister/s present but also the Mayor/Premier/Prime Minister, as the case may be, gleefully smiling for the cameras, sod turning shovel in hand and resplendent in government liveried high-vis vests and hard hats. Need or demand for the project is as vastly over-estimated as the costs involved are under-estimated.

How else can a project get off the proverbial ground, lest the tax-paying public and ever scrutinising news media object?

Which is why we are left with the sorry examples studied in WES: the mothballed Tugun desalination plant, an integrated tree processing biomass project in Narrogin, WA, the infamous Qld Health payroll system, the 2020’s CovidSafe smartphone app and the now terminated, in infamous international circumstances, the Attack Class conversion of French made nuclear to conventional submarine program.

Ominously, WES also devotes a chapter to Olympic Games, past and future. Ominously so, because our very city is due to host the 2032 version. Brisbane bid documents estimated total revenue of A$4,941,772,000 and also estimated expenditure at, what a coincidence, A$4,941,772,000. ‘This means the net financial result will be A$0, an amazing achievement or wishful thinking, only time will tell’[2].

Barely one year after the joyfulness of the bid victory, it is clear that the wishful thinking forecast outcome has won the first gold medal of Brisbane 2032: a $1 billion rebuild of and net 8000 patron capacity increase to the Gabba, as estimated at the time of bid in mid-2021, is now a whopping $2.5 billion.[3] To say nothing of the non-financial costs also inherent in demolishing and reconstructing a stadium hemmed in by notoriously busy trunk routes, Stanley and Vulture Streets, plus the permanent loss of the East Brisbane Primary School. Montreal, Barcelona, Nagano, Athens, London and Rio de Janeiro were all cited in WES as past Games which vastly exceeded their costs estimates: a whopping 352% in Rio’s case[4]. Tokyo 2020/21 was also a financial disaster, though, in fairness, its enforced 1 year coronavirus induced postponement was always going to cause profoundly negative financial results. Little wonder then that Brisbane’s ‘victory’ in being awarded the 2032 Games was unopposed, dare we say, the Olympian version of a Magistrates Court default judgment? Hopefully, the final result will be worth more than the mere piece of paper that most lower quantum default judgments, notoriously, are. However, given the current Gabba project costing debacle, one ought not hold one’s breath.

George Washington is universally known as the first ever president of the Republic of the United States of America. Less well known is the story of his action as a boy in cutting down his father’s favourite tree. This vignette is cited in WES not for what readers may infer was a ferocious remonstration with attendant physical injury inducing corporal punishment, as was de rigeur during the far less enlightened yesteryear of George’s childhood. Rather, it was cited for the polar opposite in reactions: upon George’s confession, the father’s remarks were: ‘Run to my arms you dearest boy … glad am I, George, that you killed my tree; for you have paid me for it a thousand fold’[5]. The moral of the story was not about the child, George’s honesty. Rather the polar opposite to expectations reaction of his father was because ‘… harsh reactions to mistakes encourage dishonesty. Oppositional politics is usually rather less kind than was George’s father, and so a basic accountability mechanism in politics encourages less than frank disclosure of mistakes, and therefore inhibits policy learning’[6].

The only aspect of the above quote this reviewer disagrees with is the ‘usually’ epithet. The oppositional nature of our polity means that oppositions are always, not usually, less kind than George’s father. Scathing in fact, not merely less kind.

Moreover, policy learning is not the only victim of adversarial politics, with its concomitant need, obligation even, for mistakes by our political leaders to be exponentially magnified and scolded. The other loser is efficient usage of public revenue. Unlike many a discussion that emanates amongst the bar, the solicitors’ branch and clientele about the need to stop throwing good money after bad and, thereby, look to settle litigation commercially during interlocutory stages rather than running all the way to trial, settling is not the political way. Because to do so is tantamount to admissions of failure and incompetence. This is why well north of 90% of litigated cases settle and, moreover, settle wholly out of the public eye. For the few that are reported, non-disclosure clauses allow both parties to save the face that our politicians cannot.

This phenomenon is described in WES as ‘sunk-costs syndrome’: ‘…. too many projects suffer from the classic ‘sunk-costs’ syndrome, whereby “poor choices will be persisted with, rather than abandoned” because of the level of resources and political reputations invested in a particular project [, and as]… a matter of saving face and political reputation’[7].

Hence the broad thesis of WES: the saving of face and political reputation – both of which are admittedly of extremely high value in the bear pit that is politics – is the reason why so many white elephant projects exist. Because, once the expenditure of public money is embarked upon, it is more politically palatable to compound the spending many times over by at least finishing a project than staunching the haemorrhage by discontinuing.

Though not quoted in WES, the former pet prime-ministerial project of Malcolm Turnbull, Snowy 2.0, is the perfect exemplar. The basic premise of Snowy 2.0 is to pump water uphill when solar generation is at its peak during the middle of the day for storage until times of high demand when that same water can roll downhill, spin the turbines and inject consequently high remunerative power into the grid during peaks. Not therefore a generator per se: rather a battery. Costed upon announcement at a mere $2 billion and scheduled for completion by 2021,[8] 2021 has come and gone with the project anything but complete. An October 2019 estimate for completion at the end of 2027[9] was pushed back by a further 2 years to the end of the decade due to setbacks, costs overruns and difficulties with tunnelling equipment and materials sourcing[10]. These announcements of May 2023 follow an earlier admission by the project owner, Snowy Hydro, of a costs blowout of ‘approximately $5.9 billion’, with potential for another $2.2 billion over and above that from additional claims being made by its contractors[11].

It is of course an existential dilemma for policy makers: where is the ‘sweet spot’ where the never forgiving taxpaying public will accept that cutting losses and wholly terminating a costs blown out incomplete project is better than continuing to throw more money at a ‘seemed like a good idea at the time’ concept?

We do not know. What seems more certain is that there is really no such value. Because the political costs of discontinuing seem too high. Even for a new government not tainted by a white elephant project. The May 2022 ascension of Anthony Albanese and the ALP to government, federally, with consequential ability to blame the predecessor government for spawning Snowy 2.0 and terminate the entirety of the project, accordingly, was another opportunity forfeited. Rather, Snowy 2.0 was doubled down upon. The subsequent stalling, literally, of the construction process – Florence, one of three tunnel boring machines, has only excavated a tiny 150 metres of a 17 kilometre headrace tunnel before being ‘paused’[12] – proving to be a stark metaphor.

WES is a highly thought-provoking work, filled with numerous analyses by dedicated chapter writers who bring genuine and specific experience to bear upon the examples essayed in their chapters. Writing styles necessarily differ, with the intricacies and at times esoteric project details making some chapters easier reading than others. However, the editors’ aptly titled ‘Lessons from the Stampede’ final chapter, clearly and succinctly, wraps up the work. WES is a compendium which frankly ought to be required reading for each and every member of the nation’s parliaments at local, state and federal levels and also for those of us in the profession as a salutary lesson not to cause cases we are tasked with to lurch, similarly, into white elephant territory.   

Disclosure: The reviewer is presently in discussions with WES’s publisher, Conner Court, for publication of a book of his own.

[1] White Elephant Stampede [Eds: David Gration, Bruce Kingston and Scott Prasser], Connor Court Publishing 2022

[2] WES, at page 203

[3] Zach Hope ‘Massive Gabba rebuild bill could now fall squarely on Queensland taxpayers’ The Brisbane Times, January 18 2023, 8.49pm

[4] WES, at page 195

[5] WES, at page 5

[6] WES, at page 11

[7] WES, at page 215

[8] Bruce Mountain ‘Snowy 2.0 will not produce nearly as much electricity as claimed. We must hit the pause button’ The Conversation, October 15 2019 6.10am

[9] Stephen Rice ‘New government’s priority to keep lights on in NSW’ The Australian, 24 April 2023

[10] Olivia Caisley, Sky News Australia telecast, 3 May 2023

[11] Sophie Vorrath ‘Snowy finally confirms pumped hydro project over budget and behind schedule’ RenewEconomy.com.au 7 November 2022

[12] Ted Woodley ‘Time to cut our losses and forget Snowy shambles’ The Australian, 5 May 2023, at page 5

Author: Margaret CookPublisher: UQP

A River With a City Problem (“River”) is the thought-provoking title to Margaret Cook’s history of the symbiotic relationship between the City of Brisbane and its eponymous river.

Consistent with the author’s career as a historian, River follows a broadly historical narrative. Cook begins by detailing the deep spiritual and also practical connection the Turrbal and Jagera people had with the river, relying on it for water and food: mullet, flounder, crabs, shellfish and water birds[1]. 1823 heralded the discovery of the then unnamed watercourse by explorer John Oxley, on instructions to traverse north to locate a new penal colony for the New South Wales Government[2]. Oxley named our river after then NSW Governor Sir Thomas Brisbane, the naming of the city coming some time afterwards[3].

Matters proceeded apace, and were not delayed by the relatively unknown 1841 flood. This writer’s own tome about the propensity of our river to flood, Tennyson Breach (“Tennyson”) made mention of the conventionally recognised Big Three floods: the enormous 1893 flood, followed by the Australia Day 1974 event and, of course, the 2011 flood that remains etched in our memories, given its comparative contemporaneity. I am hence indebted to Cook for her chronicling of the 1841 flood: ‘Although records are scarce’, Cook cites an 8.43m flood height in 1841 at the city gauge[4]. If so, such would have quite substantially exceeded the city gauge heights of 1974 and 2011 of, respectively, 5.45m and 4.46m[5].

Even more intriguing in this respect is Cook’s reference to an observation in May 1770 by Captain James Cook’s botanist Joseph Banks of a ‘dirty clay colour’ in Moreton Bay waters[6]. Such would infer a large flood, especially given this writer’s recollection of press photos taken of Moreton Bay almost becoming Mud Bay as the 2011 floodwaters finally receded to sea.

This being the case, one may conclude that the Brisbane River has flooded substantially at least 5 times during the years 1770 — 2011.

The concept of ‘taming’ the Brisbane River forms Cook’s third chapter. Barely had the inundation wrought by the 1893 flood subsided that the demands of angry Brisbanites for structural solutions to prevent a repeat began[7].

Not that anything happened particularly quickly; indeed, it was only after ‘decades’[8] that the Bureau of Industry Amendment Act 1934 was enacted and a Stanley River Works Board empanelled to begin construction of what would become Somerset Dam, completed 18 years later in 1959.

Of course as we all know, and notwithstanding Somerset Dam being by then extant, in ‘January 1974, the river reclaimed its floodplain’[9]. A cyclone named Wanda crossed the coast near Gympie on 24 January 1974, quickly degenerating into a rain depression dumping a full 314mm of rain in Brisbane on 26 January 1974 alone[10]. What we don’t all know however is that the concept for the subsequently constructed dam — Wivenhoe — had actually spawned in the 1960’s and was followed up by a Coordinator General commissioned feasibility study in 1971. Wivenhoe was not therefore an idea conceived entirely reactively from the 1974 event. To the contrary, Wivenhoe’s primary purpose was water supply, with a secondary pretext of a limited hydro-electric generation capacity[11].

Not that these details prevented then premier Sir Joh Bjelke-Petersen declaring at Wivenhoe’s official opening on 18 October 1985 that he ‘doubted if the 1974 flood could occur again because the dam would absorb an enormous quantity of water before any had to be released’[12].

Prophetic words indeed from the Premier who also doubted that the Fitzgerald Inquiry was necessary[13].

Cook’s recitation of the gestation then completion of Wivenhoe Dam heralds discussion of that dam’s first major test: the substantial rainfalls between September 2010 and January 2011, including official readings between 9-13 January 2011 of 480mm at Wivenhoe and 370mm at Somerset[14]. Enormous as these totals were, and as this writer himself postulated[15], it was not solely due to the ‘unprecedented releases’ from Wivenhoe Dam but ‘substantial contributions from the uncontrolled Lockyer Creek and Bremer River racing towards the capital’[16] which created the loss and damage wrought to so many Brisbane suburbs during those difficult January days in 2011.

If there is a singular theme to Cook’s work, it is her repeated invocation of ‘the floodplain’ to describe areas adjacent to the Brisbane River and its many associated tributaries. Cook in turn develops a subsidiary theme: an imprudence to develop in such areas thesis. Cook prints rejoinder arguments from persons with interests contrary to her thesis, such as the Johnston Dixon real estate agency’s view that ‘neither the Brisbane nor the Bremer River caused the devastating 2011 Brisbane Floods; that neither did Wivenhoe nor Somerset Dam cause….[rather] the blame lay squarely…at the feet of those charged with their management’[17].

This writer disagrees with Johnston Dixon’s argument: in 2012 I, identically to Cook, cited the vast amounts of waters which so devastated the Tennyson Reach apartment complex the direct subject of my work. In so doing I noted the feeding into the Brisbane River downstream of the Wivenhoe Dam floodgates of (in geographical order), Lockyer Creek, the Bremer River and Oxley Creek. All three of these systems intersect with the Brisbane River downstream of both the Somerset and Wivenhoe Dams and hence contributed flood waters to Brisbane wholly independently of any acts or omissions of engineers tasked with those dams’ operations[18]. 

At this point in the review it is apposite to note the recent handing down of judgment in the colloquially named 2011 Floods Class Action: in finding against the State of Queensland, Queensland Bulk Water Supply Authority trading as Seqwater and SunWater Limited, Justice Beech-Jones of the NSW Supreme Court noted, in respect of the oft-quoted ‘Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam’, that it ‘designated a flow rate of 4000m3/s in the Brisbane River at Moggill as the threshold point at which homes and businesses downstream of the [Somerset and Wivenhoe] dams would commence to be flooded‘[19].

His Honour then concludes ‘….to a significant extent the large increase in outflows from Wivenhoe Dam coincided with large outflows from Lockyer Creek and the Bremer River. The peak flow rate experienced at Moggill …. on 12 January 2011… was between 10,420m3/s and 10,700m3/s, of which between 4200m3/s and 5300m3/s was attributable to releases from Wivenhoe Dam.’[20]

The upshot being that, if we assume no water at all was released from Wivenhoe Dam, and therefore subtract the Wivenhoe induced peak of 5300m3/s from the bottom range of the flow measured at Moggill, the Moggill flow rate caused solely by waters delivered by the Bremer River & Lockyer Creek would have been 5120m3/s.

As a result, not insubstantially exceeding the minimum 4000 cubic metres per second ‘threshold point at which homes and businesses downstream … would commence to be flooded.’

And, as a further result, disabusing the ‘taming’ the Brisbane River concept Cook’s third chapter introduced.

Ultimately Cook decries ‘a well-travelled path: reliance on Wivenhoe Dam underpinned by an ongoing belief that floods can be tamed with a technocratic solution’[21] in opining that ‘[F]uture floods are inevitable’[22].

Cook ends River by exhorting us to ‘foster a harmonious relationship with the Brisbane River, as the Turrbal and Jagera people have for centuries. Perhaps in time we will accept that it is a river with a city problem and not the other way around’[23].

River is an excellent work, researched and referenced with meticulous detail and written by a writer whose passion for the subject is obvious yet who never loses objectivity in the process. I highly recommend a read of this book.

[1] River, at page 1[2] River, at page 3[3] River, at page 4[4] River, at page 10[5] River, at page 152[6] River, at page 3[7] River, at page 44[8] River, at page 67[9] River, at page 91[10] River, at page 92[11] River, at page 126[12] River, at page 129[13] The Premiers of Qld: Eds. Murphy, Joyce, Cribb & Wear. University of Qld Press 2003, at page 318[14] River, at page 145[15] Tennyson, at page 116[16] River, at page 150[17] River, at page 188[18] Tennyson, at page 116[19] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657 (29 November 2019), at paragraph [10] of the judgment summary[20] Ibid[21] River, at page 193[22] River, at page 197[23] River, at page 198