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| Campbell Newman, then lord mayor of Brisbane, during the clean-up after last year's floods. |
CAMPBELL Newman looked down the barrel of a television camera in early June. In one crisp sentence the Queensland Premier laid the groundwork for a revision of official facts and findings on which the ink had barely dried. More important, they are facts and findings on which the futures of many people depend.
Newman's statement flagged a very different interpretation of some of the vitally important circumstances surrounding one of Australia's worst disasters: - the devastating flooding of Brisbane and surrounding suburbs in January last year. It is a gambit striking for its audacity.
For Newman personally, it is also shaping as a serious political mistake. The flood occurred on the watch of his predecessor, Anna Bligh. Her tired and inept Labor administration shared responsibility and blame.
But as a result of Newman's bold public position since the March state election, he now owns the problem. He is accountable as his government seeks to minimise legal and financial exposure to flood victims in what is looming as the country's largest class action. How severely will a premier, if seen to be spinning findings and potentially compromising a fair go for victims who lost everything, be punished in the court of public opinion, and the civil court, when these matters are litigated?
Newman said in June: "There was a royal commission which had no finding, no adverse finding, against the SEQWater organisation, the operation of the dam, and so now people believe that they have a (legal) case. Well, it is a legal matter and that's all I'm going to say about it."
To flood victims, engineers, lawyers, journalists and anyone even vaguely familiar with the unambiguous findings just three months earlier of the $15 million royal commission-style public inquiry (which had spent a year examining Queensland's Wivenhoe Dam and its operator, SEQWater), Newman's statement could not be more patently absurd.
When Inquirer put this to Newman in a series of formal questions yesterday, he would not discuss the matter. In a brief written reply he neither affirmed nor withdrew his June statement, and declined to be interviewed. When his senior media adviser Lee Anderson was subsequently asked if Newman still stood by his claim that there was "no adverse finding" by the inquiry, he replied, "Yes, absolutely." Anderson later added that Newman had intended to convey that there was no finding of "negligence" (which is a legal construct).
Six days ago, the release by the Newman government of a Wivenhoe Dam desktop review - commissioned from engineers in the US who were given six weeks for the task - was marketed as a thumbs-up on the dam's operation. The underlying terms of reference stipulated by Queensland government lawyers a month after Newman's statement about "no adverse finding" expose the low value of the US engineers' review.
Contrary to the recommendation in the final report of the year-long floods inquiry, the terms of reference are explicit in restricting the US engineers from factoring in the serious adverse findings and evidence about the cover-up that the Wivenhoe Dam engineers were found to have concocted.
When Inquirer raised this with Newman's office yesterday, his spokesman said: "He stands by the way in which the independent review of SEQWater's report was undertaken. He has no further comment."
Newman has long had a keen professional interest in flood risks in Australia's third largest city. In the weeks before Brisbane was submerged, leading to a national levy for all taxpayers, Newman as lord mayor had taken the rare step of issuing public warnings (unheeded by SEQWater and the Bligh government) that the intense La Nina-driven wet season of late 2010 presaged a repeat of the 1974 flood disaster.
The Bureau of Meteorology's forecasters, similarly concerned, gave emergency briefings to Bligh's cabinet in the days before last year's flood. Those warnings were to no avail - the Wivenhoe Dam was maintained at its full supply level, and higher, even as flooding rain deluged an already saturated catchment.
As a former engineer who monitored the subsequent public inquiry's year of evidence, and particularly its scrutiny of dam management, Newman is in a better position than most to appreciate the gravity of the findings in the final report of Supreme Court judge Catherine Holmes in March this year. Those findings weighed the complex evidence about huge flood-causing releases of water from a dam. The findings distilled this into tangible information for the public, bureaucrats, lawyers, politicians, journalists and the thousands of flood victims.
But something else is going on now. And senior Newman government officials have confirmed to Inquirer that the post-flood strategy is being tightly controlled at the highest levels by the lawyers, as they and Newman fear a financial king-hit from the unchallenged findings of Holmes.
The $15m inquiry headed by Holmes found that the operator of the Wivenhoe Dam breached the operating manual in relation to water releases at a crucial stage of the flood; that three of the four engineers covered this up; and that there could have been "at least some improvement in the flooding outcome for Brisbane and Ipswich" if the engineers had responded with the correct strategy in the manual.
The engineers, who have strenuously and repeatedly denied wrongdoing, almost achieved the cover-up by way of their misleading post-flood 1000-plus page official report of their actions, known as the March flood event report.
When Holmes and her inquiry examined it earlier this year, the evidence showed how three of those engineers in charge of "the most valuable and dangerous piece of infrastructure in Queensland" retrospectively reconstructed a false account of when the key water-release strategies were adopted. This was the most critical part of their false account of their conduct in the March flood event report.
The questions over what the lawyers call "causation" - and of how the mismanagement and breaches of the manual contributed to the scale of the flood - remain unanswered. But it was obvious there would be no point in trying to cover up a perfect performance. It follows that the engineers could have been motivated to mislead after the event because they were concerned that the breaches of the manual may have had a role in significantly compromising the dam's capacity to manage the flood.
As Holmes stated in her final report: "The commission has drawn its conclusions from the contemporaneous documentary evidence, the engineers' evidence given orally and by way of statement, and the attempts subsequent to the (flood) event to document strategy choices. That evidence, taken as a whole, points overwhelmingly to the findings which follow."
The inquiry found: "There are several things that may have motivated the three engineers to present the false flood report, including a wish to protect their professional reputations from the damage that would be caused by a disregard of the manual, or the maintenance of SEQWater's immunity (from legal action and huge payouts) under the Water Supply (Safety and Reliability) Act.
"Mr (Rob) Ayre, Mr (Terry) Malone and Mr (John) Tibaldi each had a level of understanding that the report was misleading. Each of them, in his own way, contributed to acceptance of the report. The evidence leads inevitably to the conclusion that in addition to their own knowledge about the misleading nature of the March flood event report, Mr Tibaldi and Mr Ayre were each aware of the other's state of mind in this regard."
The inquiry found that the engineers exhibited a "striking unanimous and collective collapse of memory" about other evidence and documents at odds with their version of their conduct.
"All of them supported the accuracy of the flood event report and provided an account of what they had done in the event, consistent with the (March flood event) report. Had any of them mentioned that any of those (other documents) or suggested in any way, at any time, that there was an alternative history of strategy selection, the misleading nature of that report might have been exposed."
The inquiry found that the engineers were aware that the "particular aspect of compliance with the manual was something which would, after this event, be examined as never before. And they knew that in this regard their efforts were deficient. There was, in this circumstance, an obvious motive to present something which conveyed a document which was accurate and precise.
"The evidence is such as to warrant a recommendation that the appropriate law enforcement agency investigate the conduct of Mr Malone, Mr Tibaldi and Mr Ayre."
Aside from the cover-up - which the Crime and Misconduct Commission determined last month would be oppressive to criminally prosecute - the inquiry's findings that "Wivenhoe Dam was operated in breach of the manual from 8am on 8 January 2011" for at least 34 critical hours is the most serious.
From the perspective of the damage that was caused to properties from the dam's releases of water, this breach - and another breach in which the engineers did not take into account forecast rainfall - will make the legal action case being run for flood victims by Damian Scattini, of Maurice Blackburn lawyers.
Scattini, who has been spending much of his time in the US taking expert advice from engineers agog at the detrimental role of the dam in a flood that could have been largely avoided, describes the conduct of Newman and his government now as a PR exercise.
"The facts are straightforward and do not change," he says. "They breached the manual and they were caught out, and we are moving full-steam ahead."
- HEDLEY THOMAS, NATIONAL CHIEF CORRESPONDENT
www.TheAustralian.com.au
29.9.12
