Life or death decisions

Life or death decisions

29 May 2010

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Australia — AMID the hundreds of hours of hearings and almost 1000 bundles of evidence, there is at least one question Bushfires Royal Commission chairman Bernard Teague is yet to find an answer for. What word can be used to describe the sheer ferocity of a bushfire of the kind seen on February 7 last year?

The royal commission has repeatedly heard of flames up to 100 metres high, storms of embers so fierce it seemed the air itself was alight and eucalypt gas exploding into rolling fireballs of atomic force.

The term ”bushfire” was so inadequate that Teague was prompted to probe witnesses for other possible descriptors. Mega-fire? Firestorm? The terminology was always found wanting.

And shortfalls would become a theme throughout the commission’s year-long pursuit of information that could, in the hopeful words of its senior counsel, Jack Rush, QC, ”assist in the saving of lives”. Shortfalls in the delivery and accuracy of warnings, in the application of policy, in emergency management structure and, most controversially, in leadership at the very top of the chain.

But this week, after 155 days of hearings, 434 witnesses and 995 tendered pieces of evidence, the Bushfires Royal Commission finally came to an end. Lying ahead of commissioners Bernard Teague, Susan Pascoe and Ron McLeod is the unenviable task of sifting through a rumoured million-plus pages of evidence, 20,000 pages of official transcript and an entire year’s worth of investigation. What they produce in the commission’s final report – parts of which have been compiled as interim recommendations already released – is expected to have the most significant impact on Victorian and Australian bushfire policy since Judge Leonard Stretton’s inquiry into the 1939 Black Friday fires.

”There’s no question that there has never been a more comprehensive fire inquiry,” RMIT bushfire researcher John Handmer says.

Even before a single witness was called and before any evidence had been presented, the man leading the royal commission’s legal team had laid out for the public – and the media – his game plan.

On April 20, 2009, just 2½ months after the Black Saturday bushfires killed 173 people, and two weeks before the commission would begin its work in earnest, Rush outlined in the County Court the key themes the commission would follow over the course of a year.

”Where there was failure or mismanagement it must be identified,” he said. ”Witnesses will be questioned and tested for the purpose of ensuring that in this open inquiry all relevant matters and issues are before you [commissioners] – for the preservation of lives.”

His words seemed almost prescient, anticipating as they did some of the biggest issues to emerge in the commission over the following 12 months. The timeliness and accuracy of warnings, the true defensibility of homes against an inferno, the preparedness of the 000 network and the inescapable fact that people may have faced fires on February 7 that simply could not be fought – all this has since been explored in deliberate, thorough evidence.

And since Rush made his introductory remarks, extraordinary detail about the 2009 fires has come to light.

Warnings, the commission has heard, were at times deathly slow or never arrived at all. The tiny hamlet of Strathewen, which lost 27 people out of a population of about 200, was never mentioned in any warnings even though it was rimmed by St Andrews to its south and Kinglake to its east. Between them, these three communities lost more than 80 lives.

Nor was the Gippsland township of Koornalla, where four people died, mentioned. And warnings elsewhere were hampered by apparent territorial disputes within and between agencies.

A litany of other issues was unearthed: predictive mappers whose work had been underutilised in the main Melbourne control centre; radio ”black spots” leaving firefighters and police in potential peril; ageing electricity infrastructure thought to have sparked at least four fires; water supplies that ran dry in Marysville; and the finding that – despite a long-held view that ”people protect houses, houses protect people” – 113 of the 173 dead were found in or near homes.

Perhaps the greatest task facing commissioners as they write the final report is what to do with the ”prepare, stay and defend or leave early” policy, the main tenet underpinning much of the bushfire practice of the past two decades.

Research completed for the commission found that 20 per cent of those who died in the fires of Black Saturday had been considered well prepared for bushfire. A further 44 per cent had ”vulnerabilities” (such as age or illness) and likely should never have been there at all.

For counsel assisting, this has further influenced their final submissions to commissioners, in which they called for a complete overhaul of the policy that has come to be known by the shorthand of ”stay or go”.

”One of the things that I, and I think a lot of people, would like to see come out of this is a suite or a range of strategies, because no matter how good that strategy might appear to be, it’s not going to work for everybody,” Professor Handmer says.

”Jack Rush made a point that policy needs to reflect reality. And one of the things about stay or go is that you can see it as reflecting reality because some people are going to stay no matter what, and we need to not deny that.”

Most memorably, although perhaps not for those at the pointy end, the commission has also taken the skewer to the bureaucracy of Victoria’s emergency management system and, bit by bit, exposed a series of failures, absurdities and leaders hamstrung by protocol and passivity.

”The evidence … leaves a sense of bewilderment at what can reasonably be described, we say, as a lamentable lack of responsibility and leadership from the most senior personnel involved in fire and emergency response on 7 February,” Rush told the commission this week.

A diffuse power structure had left no one person responsible for warning communities – a situation that has since been remedied as a result of the commission’s interim recommendations and a review by Police Commissioner Simon Overland. In the case of bushfires, the responsibility for warnings has now been conferred on the chief officer of the CFA.

And lawyers for the commission have not shied away from naming names.

Former police chief commissioner Christine Nixon had a very public evisceration at the hands of counsel assisting, Rachel Doyle, SC. An undisclosed pub meal with friends on the night of February 7 – first revealed by the media – became her undoing, and the hotly contested submission by counsel assisting that she attempted to deliberately mislead the commission is now being mulled over by the commissioners before the final report’s release.

CFA chief officer Russell Rees was similarly hammered by Rush over a number of days last year in an outing that many had initially believed was meant to provide an overview of his activities on Black Saturday but which instead became a systematic deconstruction of his role, responsibilities and capacity to accomplish what was required of him during the emergency. Labelled by counsel assisting the commission as being ”fundamentally removed” from aspects of his role, Rees last month announced that he would quit his post in June.

Other leading emergency services personnel were also questioned and have since been named in submissions that have gone before the commissioners. Department of Sustainability and Environment chief fire officer Ewan Waller, CFA deputy chief officer Steve Warrington, and CFA state co-ordinator Geoff Conway have all had their conduct on Black Saturday called into question.

Emergency Services Commissioner Bruce Esplin was also criticised as being ”deficient” in the role he took in informing the Emergency Services Minister Bob Cameron of the fire situation across the state. Even the minister was asked to account for his actions on the day.

Such high-profile targets have left some in the legal community concerned by the commission’s agenda, and led Nixon and Rees to appoint their own legal counsel.

Julian Burnside, QC, representing Rees, gave a crafted, elegant defence of the man and urged the commission to make findings that were ”constructive not destructive”. Jim Kennan, SC, for Christine Nixon, lambasted the ”evil” of counsel assisting’s submission that Nixon had attempted to deliberately mislead the commission. ”These sort of allegations can destroy people’s reputations,” he warned.

Indeed, one leading barrister with experience in royal commissions questioned whether this bushfires inquiry had become hampered by its aggressive tactics. ”It’s all about scalps, and it’s sort of been all over the shop,” the barrister told The Age. ”I’ve got no faith that this royal commission will do anything worthwhile. A royal commission like this, you do need to get information from a wide variety of sources and when you start blaming people and once you’re on the hunt for scalps, you will not get information. That closes down your sources of information.”

But re-reading Rush’s introductory statement from April last year, there can be no doubt that individuals were going to be named and the roles they played on February 7 intensely scrutinised.

Esplin accepts that this was always going to be a possibility. ”I expected to be held to account in the royal commission,” he told The Age this week. ”I’ve no problem with that. I expected it to be a very intense process.” In an interview on ABC radio yesterday, he said he would accept criticism that was fair but was prepared to ”walk away” from his position if he or the government felt he no longer had a role to play in emergency management.

Esplin says he is ”very confident” that the commission’s final findings will be followed through, even though he himself has penned a number of reports over many years calling for some of the same changes discussed in the commission’s interim report.

”Everybody, and I mean everybody, owes it to the memory of the people who perished to make sure we do everything possible to not let that happen again,” he says, highlighting the unavoidable context in which this royal commission sits.

Indeed, with coronial inquests on hold until the final report is handed down, the Bushfires Royal Commission has provided the only opportunity for those who lost loved ones in the fires to have those lives marked, and the only place where they might be able to seek some answers as to why and how they died.

Initial fears that victims would be left out of proceedings have largely been unfounded, although Hugh de Kretser, of the Federation of Community Legal Services, maintains that victims should have been given official leave to appear before the commission.

In fact, the decision to include those directly affected by the fires in the hearing process has been a common theme for the commission’s supporters and critics. While some have complained that too much time has been spent hearing testimony from ”lay witnesses” during what has reportedly been dismissed within firefighting bureaucracy as the ”two o’clock tears”, for the commissioners and their lawyers the memories of victims have been the driving force.

In his closing remarks on the commission’s final day, Rush made this point: ”Counsel assisting have seen themselves as representing the public interest and particularly those that died and relatives, friends and associates of those that died. We have all been motivated by their families.”

One hundred lay witnesses, including survivors and those who lost people in the fires, have given evidence to the commission and spoken of their experiences. The deaths of all the 173 people who perished were examined in special hearings in which the final moments of a person’s life were pieced together through forensic evidence and witness accounts.

Some stories were particularly astonishing.

Melbourne man Daryl Hull provided eloquent commentary to video footage he had shot in Marysville the day of the fire. Hull had weathered the firestorm in a lake near the town’s Gallipoli Oval – just him and the ducks – and later emerged to film in panorama from the centre of the oval the town’s fiery destruction.

Joan Davey, mother of Kinglake man Rob Davey, mother-in-law of Natasha Davey and grandmother of Jorja and Alexis, encapsulated the despair and anger felt by many at the loss of loved ones, saying her family had been boosted with ”false confidence” that they could fight a fire that could not be beaten.

”The daily reminder of the human face of the issues, I think that’s been very powerful,” forestry expert and repeat witness at the commission Kevin Tolhurst says. ”It brings it back to the fact that this is not about government, this is not about government agencies, it’s actually about the public, the community.”

Tolhurst, who was in the Integrated Emergency Co-ordination Centre on February 7, working in a team that created maps predicting the Kilmore and Murrindindi fires’ path, says there has already been ”dramatic change” within fire agencies since Black Saturday, thanks in no small part to the work of the commission. This summer the IECC was renamed the State Control Centre and a simple reorganisation of the control room ensured better information flow during the 2009-10 fire season.

However, philosophical change is yet to take a firm hold, he says, and understanding that ”fire is able to grow to a size and have a scale well beyond anything that humans can really suppress” is crucial.

Teague’s conundrum, therefore, goes to the heart of what Tolhurst and others are looking to the commission to provide. Better systems, better information and a better chance for people to make that life or death decision.

”It’s not about having more big aircraft and more firefighters,” Tolhurst says. ”It’s about providing more information to the community at large.”

The commission will hand its final report to the government on July 31.

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