The Crime and Misconduct Commission (CMC) has finalised an extensive review of material provided by the Queensland Floods Commission of Inquiry following a recommendation that it investigate the conduct of three of the engineers operating Wivenhoe Dam.
On 16 March 2012, the then Premier formally referred the matter to the CMC.
As detailed in its final report, released the same day, the Queensland Floods Commission of Inquiry was not charged with the responsibility of making findings as to whether the evidence before it established any criminal offence or official misconduct on the part of the engineers – John Tibaldi, Robert Ayre and Terry Malone.
The express terms of the Queensland Floods Commission of Inquiry’s recommendation to the CMC [16.1] are set out in its final report:
http://www.floodcommission.qld.gov.au/publications/final-report ), as detailed below:
16.1 The Crime and Misconduct Commission should investigate whether the conduct of Mr Tibaldi, Mr Ayre and Mr Malone relating to:
- preparation of documents surrounding the January 2011 flood event, including the 17 January 2011 brief to the Minister, the 2 March 2011 flood event report, and statements provided to the Commission; [and]
- oral testimony given to the Commission
evidences offence/s against the Criminal Code, and/or official misconduct under the Crime and Misconduct Act 2001 committed by any, or all, of them.
Upon receipt of the 16 March referral, the CMC initially undertook a preliminary assessment of the voluminous material involved before concluding the most efficient way forward was to engage retired Justice of Queensland Court of Appeal, John Jerrard QC, to complete a full examination of the material.
As detailed in advice released today
http://www.cmc.qld.gov.au/topics/misconduct/investigating-misconduct/investigations-and-hearings/2012-examination-of-wivenhoe-dam-engineers-conduct/advice-from-john-jerrard-qc
(PDF, 320 KB), Mr Jerrard noted that the Queensland Floods Commission of Inquiry, in its final report, did not criticise the engineers for their adoption of ‘Strategy W4’ in Seqwater’s Manual of Operational Procedures for Flood Mitigation at Wivenhoe Dam and Somerset Dam (Revision 7), with the inevitable flooding of parts of metropolitan Brisbane that followed.
In light of the terms of the Queensland Floods Commission of Inquiry’s recommendation to the CMC and because of the absence of criticism, as noted above, the CMC has not considered whether the actions of the engineers in managing the dam gates during the flood could amount to either a criminal offence or official misconduct.
The focus has necessarily been on how the engineers articulated what they had done after the event in reports and oral evidence to see, for example, if charges such as perjury were appropriate.
According to Mr Jerrard’s advice, an inherent contradiction existed between the manual’s flood strategy flowchart (W1 to W4) and a definition of Strategy W2, as later referred to in the manual. For full details, read Mr Jerrard’s advice, with particular reference to the sub-heading ‘The Problem with the Manual’ (starting paragraph 81) and conclusions (starting paragraph 102). The manual can also be viewed as “Exhibit 21” to the Queensland Floods Commission of Inquiry’s final report.
Mr Jerrard concluded: ‘If the engineers had been following the flowchart they could have honestly believed they were in Strategy W2 until the contradictory terms of the definition were adverted to.
‘This contradiction in the manual would provide an explanation for all of the engineers’ inconsistent statements and descriptions of what they had done at the time of the January 2011 Flood Event, and is not evidence of either the commission of a criminal offence or official misconduct.’
Finally, Mr Jerrard noted that implementation of the Queensland Flood Commission of Inquiry’s recommendations for Seqwater to review/create a new manual, with the assistance of experts such as technical writers and legal review, to ensure compliance during any future flood, should remove any inconsistency or ambiguity.
The CMC is satisfied that upon examination of the material, there is no evidence to suggest the conduct of the engineers evidences offences against the Criminal Code or official misconduct and accepts Mr Jerrard’s conclusion that it would be an unjustifiable use of resources to take any further action.
All parties have been advised of this outcome, with a copy of Mr Jerrard’s advice also provided to Seqwater.
The CMC has also determined that Mr Jerrard’s advice is a matter of public interest and appropriate for public release.
Read the advice in full:
http://www.cmc.qld.gov.au/topics/misconduct/investigating-misconduct/investigations-and-hearings/2012-examination-of-wivenhoe-dam-engineers-conduct/advice-from-john-jerrard-qc
21.8.12
