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Floods inquiry commissioner Cate Holmes,
during a hearing on April 18 last year, overlooked
damning evidence of a cover-up. |
WHEN Premier Anna Bligh first contemplated a royal commission-style probe into the devastating Queensland floods of January last year she needed little prompting to seek Catherine Ena Holmes as its head.
The legal credentials of Holmes, a serving Supreme Court of Appeal judge who had won praise as a solicitor, criminal defence lawyer, commonwealth crown prosecutor and District Court judge, were beyond reproach.
Holmes, 55, has long been perceived by senior Labor Party figures and their successive Queensland governments as immensely talented, a safe pair of hands. Her commitment to social justice issues was recognised early because of her work as a founding member of the Women's Legal Service.
In the eyes of fellow lawyers and politicians, her reputation for fair play, and perhaps antipathy towards the conservative side of politics, was bolstered when she took on National Party premier Rob Borbidge in 1997.
Holmes sued Borbidge for defamation after he had sacked her from the state's Community Corrections Board and personally attacked her integrity. Both Borbidge's conduct and Holmes's response were unusual acts in the political-legal theatre of the day.
Holmes, a lawyer in private practice at the time, explained that she was "angered that my personal and professional reputation should be damaged by Mr Borbidge's desire, for political purposes, to use as scapegoats not only the board as a whole but its members as individuals. I will be taking the steps I consider necessary to preserve my reputation and rectify the damage he has caused."
The defamation case was settled after crown lawyers acting for Borbidge offered $5000 in early 1998. But having brought the proceedings against a National Party premier and described as "wrong-headed" his policy on the administration of criminal justice, Holmes had marked her card with the conservatives. The married mother of three could not look forward with confidence to the prize of a career on the bench; a slighted National Party cabinet would never have countenanced it.
Within a few months, however, Borbidge was swept from office by Labor led by Peter Beattie. Holmes was appointed an acting District Court judge a year later, received silk, and in 2000 was elevated to the Supreme Court.
Hers was regarded as a merit-based appointment; few if any in the legal profession doubted that she was equal to the task. However, the circumstances and timing were unfortunate: her sponsor, Labor's then attorney-general, Matt Foley, wanted to increase the number of women on the bench, and he said at her swearing-in: "This will help to address the scandalous under-representation of women in our courts."
Holmes, the product of a working-class background and state school education who "had not a single relative in the law, not so much as a family friend or acquaintance in the law", replied to the feminist angle with frankness: "I have no desire to be representative of any particular group. I aspire only to fairness, reasonableness and some compassion, and I don't think that those qualities are gender-linked."
Today, on the eve of Holmes giving the final report of her floods inquiry to Bligh tomorrow, it is timely for public reflection on the controversial context of her appointment to run the $15 million probe, its performance and legacy, and the "fairness, reasonableness, and some compassion" to which she aspired. Both women have good cause to be bitterly disappointed over what has transpired.
For a senior judge who, as a younger lawyer, was sufficiently agitated about a one-off attack on her reputation that she took on a premier, Holmes should be deeply wounded by the public criticism of her floods inquiry. It now bears a serious blemish that will be difficult, if not impossible, to remove. In sections of the public arena and the legal-judicial community, the hundreds of sensible recommendations and findings revolving around everything from land-use planning on flood-prone ground to the wiles of insurers will be of little consequence.
The thousands of hours of effort by the inquiry's staff in the examination of witnesses and a mountain of accompanying material have highlighted numerous serious flaws in government policy and procedure. The hard work will not be wasted. Positive changes are inevitable.
But now and well into the future, the good outcomes will be overshadowed by what the inquiry became notorious for.
It had overlooked damning evidence, exposed in a series of articles in The Australian, pointing to a cover-up by the flood engineers, a breach of the dam's operating manual and an inquiry that had been fundamentally misled.
For Bligh and Holmes, the revelation that the inquiry was hopelessly wrong-footed, forcing it to follow a newspaper's lead at the 11th hour and resume public hearings in which bureaucrats were stripped bare and the four flood engineers were accused of lying, of reconstructing a fictitious account of their actions to conceal a breach of the manual, has been extremely damaging. The engineers emphatically deny any wrongdoing.
Holmes, a study of understated authority, found herself in the perfect storm: a confluence of raw emotion from many of the thousands of people whose homes were inundated and prized possessions destroyed, public bafflement that highly paid lawyers had not found the seemingly obvious, a fight by SEQWater and the flood engineers for their survival, and the urgent repositioning by desperate politicians looking to the looming election.
In this highly charged climate, conspiracy theorists have peddled the line that the inquiry was set up only to clear Bligh, her government and SEQWater, the government-owned and operated body responsible for Wivenhoe Dam.
The failure of the inquiry to detect the crucial evidence that The Australian revealed was a cock-up, not a conspiracy. But the cock-up is merely the lesser of two evils.
The requirement for Holmes to properly examine the evidence and order a fresh round of public hearings, just days before her finished final report was due to go to the printers in late January, made the inquiry an uncomfortable captive of political priorities.
As Bligh acknowledged, she told Holmes that the urgent granting of an extension to her inquiry "could have implications for the timing of elections and this would require me to seek urgent legal advice on a number of options".
The date of the election became directly linked to the date the inquiry would report, resulting in enormous pressure on Holmes and her team to complete the tasks as quickly as possible.
Unprecedented weekend sittings were held. Significant dam-related issues including the management and contribution to the flood of the sister dam, Somerset, that should have been more closely examined, or re-investigated, were glossed over or ignored.
By having to hurry with potentially unfortunate consequences, the inquiry had been wedged by political imperatives and lost some vital public confidence.
Andrew Boe, a lawyer who worked with Holmes on the criminal defence team of backpacker killer Ivan Milat in the 1990s, said yesterday: "Cate Holmes is without peer in the legal community in Queensland because she has always had a fidelity to the truth and a proper regard for how to get there. The challenges thrown to her in her position as floods inquiry commissioner have tested her. But it is important that the political backdrop to this inquiry does not distract from the important recommendations that are sure to follow. There is nobody who could have done this huge job as precisely and succinctly as she will do."
It will be no comfort to Bligh, Chief Justice Paul de Jersey and Holmes that they were warned a year ago that as a serving judge, her appointment to the inquiry "carries real risks which cannot be ignored". In his warning, the then head of the Bar Association, Richard Douglas SC, said that for a quarter-century the Queensland judiciary "has adhered to a convention that a serving judge ought not accept appointment to head a commission of inquiry". Two days after Holmes's appointment, Douglas said: "It is clear that the present inquiry involves real potential for political controversy . . . the appointment of a serving judge runs the substantial risk of placing (Holmes) in the middle of heated political debate."
As former Supreme Court judge Jim Thomas QC put it: "We should regulate our conduct so that it does not harm the reputation of the judiciary for keeping out of politics. We have already reached the stage where it is quite difficult to imagine any royal commission that a serving judge could safely accept. (While) there may still be such occasions, recent experience and opinion seem to point in one direction: 'Be very careful', or even simply, 'Don't'."
In what some regard as not the best judgment of his illustrious career, de Jersey determined that the Holmes appointment was appropriate "due to the calamitous character of the flood events coupled with the apparent absence of any suggestion of political or institutional corruption". Holmes, who declined a request to be interviewed, has previously told The Australian: "The state election has no bearing on the conduct of the commission of inquiry or its terms of reference. It is entirely independent, and state politics should and will play no role in its considerations."
Friends and colleagues of Holmes are unsurprised that she aspired as a judge to exhibit qualities of "fairness, reasonableness, and some compassion". But those qualities also help explain why the floods inquiry took a year to take a more questioning, hardline approach to the evidence. Holmes was heading what could have ended up being the first blame-free inquiry in the state's history.
Bligh can be held responsible in part: Holmes and her staff were overwhelmed by the many terms of reference and matters they were required to investigate and to report on. The demands meant they were always under the hammer, struggling to get on top of the brief.
But Holmes and the inquiry team could have demanded more time and resources. Instead, they became too accepting of the truth of much of what they were told. On the most crucial aspects relating to whether the dam was operated properly, they initially adopted at face value the word of intensely self-interested witnesses, from the professional engineers to supposedly independent experts. In this way, until recently, the inquiry failed to test the evidence, to cross-check the testimony and witness statements against the remarkable contemporaneous records showing that the dam's operation during the flood event breached the manual.
In numerous submissions the inquiry was told that by remaining in the wrong strategy, Wivenhoe Dam stored too much water and was rapidly deprived of storage capacity as the inflow from the predicted severe wet weather arrived. As the water in the dam rose to alarming levels that threatened its structural integrity, the engineers were forced to release huge volumes into the Brisbane River.
The dam went from "she'll be right" to panic stations, with little between. The releases of water when Bligh was ashen at media conferences, and the engineers knew they were inundating Australia's third largest city, comprised more than half the flood. There is evidence showing that much of it would not have been necessary if the dam had been operated differently and in the correct strategy.
Until late January this year, SEQWater, the flood engineers and their lawyers believed they were likely to again be commended by Holmes in her final report. They looked forward to a tone redolent of her interim report last August when she stated: "Nothing in the evidence heard or the material received by the commission suggested anything other than that they are diligent and competent and acted in good faith throughout the flood event."
But if a week is a long time in politics, a fortnight of public hearings is an eternity at a commission of inquiry that suspects it has been snowed. And few expect that Holmes's final report tomorrow will be pleasant reading for SEQWater, the flood engineers and the Bligh government.
