Stay or go policy under Royal Commission microscope

Stay or go policy under Royal Commission microscope

17 May 2010

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Australia — Overturning the policy of ‘stay or go’ has not been as easy as Jack Rush perhaps imagined.

The Royal Commission’s lead lawyer has certainly tried.

In the final stages of the Bushfires inquiry, a new analysis of the 173 deaths inflicted by the Black Saturday fires has put hard figures on what had up until now been only a feeling: that many of those killed had been following the precepts of the “prepare, stay and defend or leave early” policy.

As many as 20 per cent of those who died had been “well prepared” to stay and defend according to the criteria laid out in the Country Fire Authority’s “Living in the Bush” booklet, meaning there was evidence of fuel management around their property, appropriate firefighting gear and an independent water supply. A further 14 per cent of people had made “some preparations”.

Despite having a fire plan, 47 per cent perished – a figure that prompted the man who conducted the analysis, the director of RMIT’s Centre for Risk and Community Safety John Handmer, to suggest fire plans might be worse than a nebulous concept, actually something that gave people a misguided sense of security. It was something Joan Davey had identified in the Commission’s earliest hearings – that her son Rob and his wife Natasha had accumulated pumps and firefighting equipment and developed an unrealistic expectation that they could defend a cedar house on a ridgeline, surrounded by national park.

Professor Handmer said 29 per cent of people killed were either actively defending at the time of deaths or had done “some” or “questionable” defence. If you include children and others dependent on those who were defending, he said the figure could be at least 60 per cent. But Professor Handmer said even people who were well prepared fell victim to “weak links” in their plans. From an unburied plastic pipe that melted, to wielding a standard garden hose in the face of an inferno, otherwise solid approaches fell apart in the extreme conditions.

So doing everything by the stay or go book was no guarantee of survival. This is one reading of the statistics.

But on a second count, too, Jack Rush suggested the policy had failed – in the sense that 58 per cent of those killed had made no preparations before 1:30pm on the day of the fires. As the QC put it, the figure showed that, despite years of promotion, the community did not accept the stay or go policy.

“I suggest what this would indicate on that figure is a low level of preparedness and, whatever the reasons for that, the policy, despite its history and despite its publicity, just does not get people to prepare in a way where they are properly capable of undertaking extreme activity to defend their homes,” Rush said.

“Yes,” agreed Professor Handmer. “That’s what the data shows.”

Rush called the figures an “indictment” on the stay or go policy.

The Commission has previously heard many people interpreted stay or go in such a way that it became “wait and see”. Professor Handmer went further, telling the inquiry most people had virtually followed a policy of “leave late” – the one thing you’re not supposed to do.

But the statistics, as always, can be construed in different ways and the Victorian Government’s lawyers preferred the figure that showed only 5 per cent of those who died – eight or nine people – were actively defending at the exact moment of their deaths. Forget the fact that the Commission had heard countless accounts of people who actively defended until it became impossible to do anything but passively shelter, forget that the stay or go policy advises people to shelter inside the house – albeit not passively – while the firefront passes.

Barrister Neil Clelland SC suggested the small number of people actively defending when they perished was in the policy’s favour, tending to “support the ability of people to successfully defend their homes if they do so actively and the homes are well prepared”.

For its part, lawyers for the Australasian Fire Authorities Council (AFAC) said the statistics relating to those who died did not furnish the whole picture. AFAC pointed out that, of the 14,000 residents in the fire-affected region, many stayed and defended or managed to leave early – both signs of a successful policy. The agency emphasised the intensity of the Black Saturday fires and that some people would always stay despite the best efforts at community education. And, under questioning by AFAC’s barrister, Professor Handmer agreed that a policy that might look bad through the prism of Black Saturday wasn’t necessarily doomed in milder conditions.

But it was the seasoned military commander Major General Jim Molan who told the Commission 10 per cent of emergency management had to go into planning for “the big one”, the event so unexpected it had the potential to break down the ordinary defences. The general, who’s commanded soldiers on battlefields around the world, called the concept “strategic surprise”.

“It considers a scenario which is quite outside the norm. In Iraq, the five generals who were running the war in Iraq would meet three times a week specifically to consider this and other long-term planning issues, but we would sit around and the commanding general would say, ‘Well, you know, from what we’re doing at the moment and how the war is going, how the day-to-day events are going, what is it that we have not thought of that is going to bring us unstuck?’ And you were permitted at that stage to be quite fanciful,” he said.

“It is quite often that with strategic surprise you can’t allocate events against it, such as a very bad fire or, in a military context, an attack against you in an area that you couldn’t react to, but at least you can think through, talk through, so that if you have to face it there may be actions that you can take… You put 90 per cent of your effort into the routine scenarios, but every now and again you should sit back and say, ‘What’s the worst thing that can happen to us?'”

And, as the American professor Dutch Leonard told the Commission, a policy is no good if it only works in theory. In that case it could actually be an “invitation to potential disaster”.

“A policy that worked in the ideal may nonetheless not be a good policy if we can’t actually get people to comply at the level required in order for them to remain safe. So, I think it is in effect a moral question. I don’t think we can judge the policy as good if it has bad effects by simply saying, ‘Well, the household should have complied and they didn’t,'” he said.

Professor Leonard teaches leadership crisis management at Harvard University and explained it was virtually Policy 101.

“This is something we observe to students a lot. The hope that people might do something is not in itself a policy. It is what it is, it is a hope. If we are to discharge our best abilities to try to protect people, we need to understand what level of compliance they are likely to engage in.”

“Stay or go” flaws no revelation

Perhaps more disturbing is the fact that fire agencies had known about the problems with the stay or go policy for more than a decade before Black Saturday. As long ago as 1992 researchers studying the Ash Wednesday fires described a lack of community preparedness. Again in 2002, 2003 and 2008 different researchers found the same thing.

Shocking as it remains, Professor John Handmer agreed Black Saturday’s deadly toll revealed really nothing new.

“I think the surveys and studies done by lots of groups, including the CFA, have shown that there is… a significant proportion of people who really were waiting and seeing, who planned to wait and see, they didn’t really have any clear intention. And that was known to the fire agencies, yes.”

The Commission heard the 1992 paper identified the need to not only encourage communities to stay or go but also to focus on developing new ways to manage people “who choose to act outside the bounds of the stay or go early options”.

“One could say we have turned a full circle?” mused Jack Rush.

Commissioner Ron McLeod suggested there had been little progress on that front. Professor Handmer agreed that approach looked “pretty undeveloped”. Mr Rush suggested, notwithstanding the effort that had gone into the policy, it left many people at high risk on Black Saturday, without workable contingency plans. Professor Handmer agreed but stopped short when Rush suggested the notion that “houses save people” should be “buried”.

“I don’t know that I would agree with that as straightforwardly as you have put it, but it is certainly in serious question,” he said.

“In general terms, from your experience of advising in relation to policies and warnings to people, you would accept the proposition that a community policy, emergency service policy, fails if the community does not support it?” asked Jack Rush.

Professor Handmer said that was one interpretation but equally emphasised that half of people surveyed indicated the desire to stay and defend. The explanation he went on to give, though, hinted at the complexity contained in that concept.

“I know that what they mean by that is probably not very sensible, often, in the eyes of the policy, so in that sense you could argue they haven’t embraced the policy. But people certainly seem to have embraced the idea of either defending a place, even if they have no concept of what that involves, or leaving early. Even, as we said, if there are no triggers to leave early. That to me is where the problems are,” Handmer said.

Jack Rush suggested any future policy needed to focus on the 80 per cent of people studies had shown would adopt a “wait and see” approach. He said the policy should highlight staying to defend was inherently dangerous and carried the real risk of dying, even in the best prepared homes.

He said if anything had to be learned from Black Saturday it was the fundamental need for authoritative, realistic and accurate information to threatened communities.

Rush put it to Professor Handmer that, “The ideologue will put forward a policy as to how people should behave, where the policy should be directed at how people do behave?”

“In emergency management we would normally say that, yes, the policy should look at people’s behaviour or the practice should look at people’s behaviour and then try to align with it rather than fighting against it. That’s true.”

“Stay or go” to stay

But almost a year after he first took the witness box, Victoria’s Emergency Services Commissioner seemed to indicate Black Saturday had not been the game changer Jack Rush suggested. When it came to stay or go, Bruce Esplin’s evidence gave the distinct impression there’d be largely more of the same – with a few tweaks.

The man whose job it is to advise the Government on bushfire policy did not accept February 7 represented a policy failure, saying there was no data on those who followed the stay or go advice and lived.

“I would accept that the selling, if you like, of the policy, the information around it has got weaknesses,” Esplin said.

He told the Commission the stay or go policy had been “perceived” as presenting an either/or choice but said the policy’s intention had always been to convey there was only one guaranteed safe option and that was not to be there when bushfires threatened.

Jack Rush took exception to the suggestion there had been confusion in the community, saying the confusion had been caused by the policy itself. Bruce Esplin conceded the language used to explain stay or go needed to change radically but said the Government had done that and would continue to do so. Ultimately Bruce Esplin stood by the policy’s assertion that well prepared homes in defendable locations could for the most part be defended and provide safety to occupants who were physically and mentally prepared.

“I think that has to be part of the strategy going forward. The state will be confronting bushfires every summer, not just fires of the magnitude of Black Saturday,” he said.

On the question of sirens Bruce Esplin said there had been progress with one about to be agreed at Steels Creek in the Yarra Valley and consultation underway in the Otways and the Dandenong Ranges.

“I think the community has been slower than I have expected to want to take up the opportunity to agree either the use of CFA sirens or other sirens, but the policy is there. The process is there… I suspect that as the word spreads around that it can be done and it will be done, that we may well be inundated with similar requests,” he said.

When it came to so-called “neighbourhood safer places”, Bruce Esplin confirmed Victoria still had less than 100 compared to more than 600 in New South Wales. He did concede there could be room to change the awkward name.

“I think we can retreat a bit from it… I think we can change, but I think we will have to stop changing pretty quickly. I think one of the things we must do is settle on a policy in the next 12 months that will carry us into the medium term future and I think the community will become very confused if we continue to move around.”

Commissioner Bernard Teague suggested canvassing the Victorian public to find an expression that resonated.

“Commissioner, I think we can do that. I think we are in the process of releasing a document to the public around the whole question of refuges and neighbourhood safer places. We can ask for their preferences in terms of nomenclature there and hopefully have a term that meets community needs.”

Refuges seem to be mired in difficulty. Bruce Esplin compared it to the development of a building standard, which took eight years.

“We are not going to have to wait years, are we, for a refuges policy?” Jack Rush asked.

“I am making the point there that the advice provided to us is that we will have to deal with the Building Commission at an Australian level to develop that sort of a standard. Now, I think, given the importance of this issue, I would hope that there is a way to accelerate that process to provide this crucial safety outcome… The sense of urgency is not lost on me and it is not lost on the Government, but the desire to do it right is just as dominant,” Esplin said.

Bruce Esplin was unable to say when the community could expect a refuges policy, saying it was crucial to first determine what the community wanted. Jack Rush pointed out refuges had already been established once in Victoria, then decommissioned.

“From your experiences, the way in which… refuges… were taken up by the community after the Ash Wednesday fires… historically it demonstrates a clear acceptance of the concept?” asked Rush.

“It does, but it also I think demonstrates that some people will use those plan B and plan C as a plan A. I think the position of the Victorian government is the safest place for people to be is away from a bushfire area. The Victorian Government is at pains to ensure that the new policy doesn’t by default steer people into an option that is inherently accompanied by a level of risk,” Esplin said.

On evacuations, the Emergency Services Commissioner appeared to give some ground. When challenged over the Victorian Government’s apparent preference for calling it “managed voluntary relocation” he began to justify the euphemism but then capitulated. “Probably I think in the public mind evacuation is a compulsory process.”

“So what would be wrong with that?” queried Rush.

“I don’t think it is an issue that I would resist. I think we could use the term ‘evacuation’. I think the point is we would like people to leave early. There will be situations where it may be possible for a relocation or an evacuation to occur in a managed, voluntary way. I think the Victoria Police would have that as part of their planning in their particular operational plans at an area level. I think it is really important that the movement of people and the problems that might create are part of the planning that’s done at a local level. But I don’t think I’d resist the language change,” Esplin said.

Commissioner Susan Pascoe elicited the clearest indication yet that the Government was open to evacuations in some cases. “I’m wondering is there any consideration of evacuation – not mandated but, just to make the discussion a bit easier, voluntary evacuation – in Victoria as part of the full suite of options particularly, say, in a township protection plan or some sort of broad community based response?”

“The answer is yes. I think Victoria would retain its opposition to forced evacuation for the reasons that I espoused in my previous appearance; I think the road network, the culture, the practice. I have heard so many stories from the lay witnesses of people who just would refuse to be evacuated. Having said that, I think that there will be people who, for whatever reason, would choose that as an option if it was available, a voluntary process to move people. Now, that comes with a risk. I think the point that underpins the change we want to make is the safe option is not to be there. The rest of the options bring varying degrees of risk. The movement of large numbers of people – and Marysville is an example. That could have turned horribly wrong. It didn’t and people survived as a consequence of that, and that’s a fantastic outcome. But in developing those plans at the local level it is crucial that the risk is not overlooked. There needs to be acceptance that the safe option is not to be there. All those contingencies bring an increasing level of risk with them.”

Research done since Black Saturday has shown very few people changed their normal behaviour when one of the newly invented “code red” days was declared.

The Commission heard two-thirds did not leave their homes. While one-third weren’t at home, only 1.5 per cent had left because of the code red declaration. “That stands, does it not, in effect – and I’m not blaming you or anyone else – as an indictment of the policy and the leave early part of it?” asked Jack Rush.

“I would suggest that it stands not as an indictment, as you put it. What it tells me is that processes agreed nationally for the determination of code red are not accepted by the community. I think in its current form it is a very coarse measure. I think for the code red descriptor to achieve the outcomes that the Commission wanted, it probably needs a finer degree of detail, the ability to set that message in a way that the community does understand the importance of it.”

Bruce Esplin was asked for his thoughts on other options to protect people living in bushfire prone areas. He named personal bunkers as a possibility. He said buyback schemes for people wanting to sell up bushfire-prone land had met with mixed success in the past and would again, unless there was some process of compulsory acquisition. But he suggested even that would be resisted and could lead to a situation where some leave and others don’t, something he said would put those remaining at even more risk.

“I think there may need to be in the future – I’m speaking not on behalf of the State in saying this – I think there may need to be some requirements… A personal view would be that in some cases they might need to be mandated, but that would be ultimately a decision for government. But I think there will be situations where people will be at very extreme risk, and at high risk of losing their lives if a fire starts in their area. We need to do more to deal with that situation. As I said earlier, I think society is going to have to – in considering what it is prepared to accept in the way of clearance, clearing of foliage for refuges or for neighbourhood safer places or obligations in terms of where people can and can’t build, and if they build there what are the requirements, I think that will be a decision that our communities are going to have to take because I can see that that will be a necessary part of building a bushfire safe Victoria to meet the challenges not only of today’s fire risk but a climate change increased fire risk.”

Not persuaded

If Victorians will struggle to see a bushfire policy radically different to stay or go, they look unlikely to see much change to the structure of the fire agencies themselves.

In the witness box the secretary of the Department of Justice Penny Armytage put the kybosh on many proposals for reforming Victoria’s fire agencies. Over and over she said the Government was “not persuaded” change was the answer. Ms Armytage appeared after the Commission asked the heads of the state’s three fire agencies for their views on things like amalgamation. Armytage told the Commission she had fronted the inquiry in their place to provide the “whole of government” approach. And it was encapsulated in a single word: no.

Armytage said the Victorian Government did not support or propose any significant restructure or merger of the Metropolitan Fire Brigade, the Country Fire Authority and the forest fire service, the Department of Sustainability. The Commission had examined countless versions of how to reform Victoria’s existing system, including from two former CEOs of the CFA, Len Foster and the recently departed Neil Bibby. But Armytage said none of the fire agencies had put any preferred model to her. In 2003 the CFA called for the amalgamation of the CFA and the DSE but Armytage said the agency had now dropped the proposal and was instead “supporting the Government’s submission”.

When directly asked whether the agencies all supported the status quo, she said, “They have acknowledged that that’s the State’s position and they have obviously had input and given me advice in terms of the shaping of my witness statement, yes.”

“They may acknowledge that it is the State’s position,” questioned Counsel Assisting the Commission Rachel Doyle SC, “But did any of them in their dealings with you advance a different view? They might have ultimately accepted the State’s view, but did they advance a different view?”

“There were different nuances that individual agencies might have had in relation to their preferences, but ultimately this is the State endorsed view from a whole-of-government perspective,” said Armytage.

While acknowledging a merger could solve some problems and bear neutrally on others, she stressed the importance of not discouraging volunteers by changing the system, and emphasised the value of each of Victoria’s three fire services.

“So in answer to each of the models that I have gone through with you,” summarised Rachel Doyle, “The State Government’s response is ‘it ain’t broke so we’re not going to fix it’?”

“We ultimately think there are improvements, clearly. After the events of February 7 the State has acknowledged there needed to be changes made to maximise the capacity of the fire services to respond to those major and extreme events. But we start with the presumption that throughout the course of any given year our fire service agencies have very, very strong performance and compared nationally our benchmarks about the Victorian fire agencies’ responses are very, very good and have been, in the lead-up to 7 February, something that we have been very proud of. Since the 7th and all of the tragedies that unfolded on that day, we have clearly acknowledged that we have to look at how we can refine and improve the performance of our fire agencies to be better able to respond to such major catastrophic events as occurred on that day, and that’s what we have been trying to do, but we basically think this should be a process of evolution of improvement, not revolution, in relation to our emergency services and particularly our fire agencies.”

Armytage talked about common mapping and shared technology between the fire agencies at the re-christened state control centre, and joint training. Rachel Doyle suggested the logical end point of such integration was amalgamation. “What I’m getting at is why do we spend money on improving communication between two services, making sure they learn the same IT? Why don’t we make them one and they can use the same computer system?”

“We come back to the view that we believe that each of our fire services have a special place to play and have specialist expertise and functions that they perform, but there are matters that are in common across those three agencies and we should maximise how we streamline the arrangements where the functions are common and the way in which we can employ, say, shared resources to give effect to that, but we don’t believe that you need to integrate the agencies to do that,” said Armytage.

She emphasised the difficulty of changing entrenched organisational structures.

“I guess when I have looked at the changes that have been put in other jurisdictions around Australia, all those changes have taken a very, very long time to embed a new organisational ethos or a way of working, and in some cases it’s 20 and 30 years of evolution to where they might be now… we are very anxious about what will often happen in terms of changed organisational arrangements, which is where people become very introspective in terms of their place in an organisation and it can be very distracting from the focus on what they need to do in terms of preparation, for example, for a fire season. Given we have a very short window between our fire seasons here in Victoria and given our most recent experiences of how dramatic they can be, we think that is a very real risk that we have to be mindful of in terms of what sort of approach we adopt and hence that’s very influential in our view that it should be incremental change and improvement rather than radical reform.”

Almost without pausing for breath, Armytage went on to poo-poo proposals from expanding the boundaries of the metropolitan fire district so that the now urbanised outskirts could be served by the MFB rather than relying on the CFA, to replacing the CFA’s representative-style board with a skills-based group. On calls to replace the insurance-based fire services levy with a property-based tax, she was likewise “not convinced”. She pointed to a green paper that was currently out for consultation.

But given the unanimity of the evidence the Commission has heard on some of these fronts – even the insurance industry wanted out of the fire services levy – you have to wonder what it will take to convince the powers that be. One well-placed source laments what he calls the obfuscating witnesses put forward by the Brumby Government – and the fact that the Commission has copped them. He says the politicians will never want to change the MFD boundary, for example, because the electorates that would be lumbered with a more expensive fire service as a result are largely marginal Labor seats. Sometimes the Government needs an excuse, he says, to do what’s right, but politically unpopular. A Commission that exposed the forces at play could then write a report that packed punch and maybe, just maybe, provide the impetus for change. But the source worries whether this inquiry has delved deep enough.

Circular logic

Twelve months of hearings reached their climax with the sudden calling of Victoria’s Police and Emergency Services Minister Bob Cameron. The witness box at a Royal Commission is a place no minister wants to find himself, but the moment the Opposition had been howling for passed without sensation. One fire industry veteran thought the Minister had been “well coached” and “outwitted” Jack Rush. Hands shaking so slightly it didn’t show on the television cameras, and clutching a copy of the Emergency Management Act, Bob Cameron nevertheless maintained composure – and a measure of control – by frequently correcting Jack Rush on small points and interrupting to insist on seeing hard copies of documents.

He successfully emphasised the fact his role as coordinator-in-chief was not operational and instead provided the “political interface”. He brushed aside questions about why he never recommended the Premier declare a state of disaster by explaining the declaration activated certain powers and was only made when it was deemed necessary to override legislation that was somehow hampering the emergency response.

At times the logic was circular and the exchanges bordered on the comedic, such as when Jack Rush demanded to know why the Minister wasn’t in Melbourne on Black Saturday and Bob Cameron replied, “Because I was in Bendigo”. But in the end, the Minister – who’s not always been the most polished media performer – handled the witness box as well or better than anyone who’s given evidence.


Victoria’s outgoing fire chief Russell Rees faced the Commission a fourth time in its dying days.

A year had passed since his first damaging appearance and it was seemingly a very different man this time round. His chameleon-like approach to previous stints in the witness box had seen him first distance himself from decision-making, then admit to “system failures”, before finally reverting to assertions the system worked “very, very well” on February 7.

Russell Rees gave his most emotional response to the disaster yet, looking visibly distressed as he grappled with questions from Commissioner Susan Pascoe. He was reluctant when invited to talk about what had worked well during the firestorm. “I actually hesitate to do that. The reason I do is because never will it leave my mind about the tragedy, so I struggle to say we did well.”

When asked what advice he would give his successor, he paused then declined to answer. “What I would say is – no, that’s a hard question, I’m sorry. Am I allowed to pass?”

It was somehow the most human, personal side Rees had revealed, something made more acute by his decision to wear a plain suit instead of his official CFA uniform, perhaps a hint of the man supporters say has always been behind the public persona. The commissioners seemed to warm to Rees – and days before Commissioner Susan Pascoe had already made a point of saying the fire chief had been put in an “invidious” position as the visible face of the firefight but without enough organisational clout to control decisions about strategy, policy and resourcing.

Jack Rush had rejected accusations levelled by Russell Rees’s new QC, Julian Burnside, that his client had been “hounded” in previous appearances and turned into a “sacrificial lamb” in a bid to give the public a “scalp”. But Rush’s questioning was decidedly gentler this time.

Final analysis

The Commission’s final report is due on a Saturday. If the Commission sticks to that deadline and the Victorian Government makes the document public the same day, it could all be over by Monday. For several news organisations, the reporters who covered the hearings will have moved on, either by choice or circumstance, by then and colleagues largely unfamiliar with the arduous journey so far will tackle the final analysis.

The Premier John Brumby has already made it plain there will be no blanket acceptance of the commissioners’ final recommendations. The horse has already bolted when it comes to things like potential bans on development in areas deemed too dangerous – Marysville and Bald Spur Road have sprung from the ashes for many powerful reasons.

The most bushfire-prone place on earth no longer has to imagine Major General Molan’s worst case scenario. The black days mar the calendar. But the fiercest outrage at all the failings uncovered over a year of hearings has been directed at Christine Nixon’s pub dinner.

If this is the state of affairs now, barely a year after 173 people died, you shudder to think how faded the memories will be – and how entrenched the complacency – in 10, 20 or 30 years. When the next big one hits.

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