The State Government and other parties to the commission have also presented their responses.
Please find below a summary of Counsel Assisting's submission and the State response.
Counsel Assisting's written submission concerning “Leadership, Emergency Management, Coordination, Command and Control” and the State response.
Counsel Assisting submission overview
Counsel Assisting’s submission comments and makes recommendations on the Leadership, Emergency Management, Coordination, Command and Control in relation to bushfire management in Victoria.
Counsel Assisting’s submissions examine the performance of CFA, the other fire and emergency management agencies, Victoria Police, the Emergency Services Commissioner, and the government. Counsel Assisting also comment in detail on the performance of individual personnel including CFA’s Chief Officer, three senior CFA officers, DSE Chief Fire Officer and DSE senior staff, former Chief Commissioner Victoria Police, two other senior Victoria Police officers, Emergency Services Commissioner Bruce Esplin and Police and Emergency Services Minister Bob Cameron.
COUNSEL ASSISTING KEY FINDINGS
The following is a broad summary of Counsel Assisting’s suggested Key findings
That CFA Chief Officer, Russell Rees and three senior iECC officers on duty on Black Saturday failed to take the following actions:
- Ensure that timely and accurate warnings were provided to communities in the path of the Kilmore East and Churchill fires.
- Ensure that a level 3 incident controller was in place at the Kilmore ICC at the start of the Kilmore East fire.
- Prepare or execute a state-wide plan for the response to and suppression of the major fires.
- Make adequate use of predictive maps.
- Various similar other actions relating to warnings and supervision of ICC’s.
Counsel Assisting suggest similar key findings against the DSE Chief Fire Officer and two senior officers of DSE in relation to the Murrindindi fire.
Counsel Assisting withdrew (27 May 2010) some findings against individuals after reviewing government response.
In addition Counsel Assisting's key recommendations note that former Victoria Police Chief Commissioner Christine Nixon failed to discharge her responsibilities as State Coordinator of DISPLAN on Black Saturday and that Ms Nixon further attempted to mislead the Royal Commission when she gave evidence on 6 April 2010.
STATE RESPONSE TO KEY FINDINGS
In response, the State says that Counsel Assisting’s recommendations run to 202 pages yet make a mere six recommendations.
“They are repetitive, emotive and in large part already addressed in the submissions made by the parties to date. Counsel Assisting have chosen to use these submissions to denigrate individuals and for no real purpose. Not only are the proposed key findings unjustified but the proposed recommendations do not necessitate making any of the proposed key findings against individuals.
Individuals were denied procedural fairness in that the principles require not only an opportunity to be heard but a 'full and fair opportunity to show why the finding should not be made' including the opportunity to adduce evidence.
“The State submits that in addressing the issues raised by Counsel Assisting, the Commission should recognise the changes made by the State to date and take a considered view of all the evidence, not just aspects of the evidence highlighted by Counsel Assisting; and refrain from attributing blame or fault and instead investigate practical measures that will assist in the saving of lives.
Among the points made by the State are that relevant to CFA are:
- That there should be no search for scapegoats
- Fire conditions in Victoria in January and February 2009 (and especially during the days leading up to the Black Saturday events) were significantly beyond the worst previously experienced in modern Australian history;
- The State accepts that there should be quality assurance measures relating to the issuing of warnings. However, the procedures and protocols in place on 7 February 2009 need to be properly understood when assessing whether findings against individuals based in the iECC should be made, as individuals should not be expected to shoulder the blame for systemic issues.
- Since 7 February 2009, the State has invested heavily in the systems and processes for issuing warnings to the community. That investment includes the One Source One Message system, which was in place in the 2009/2010 fire season. The system will reduce the risk of problems of the kind encountered on 7 February 2009.
- The State accepts that the flow of information between the iECC and the ICCs on 7 February 2009 fell short of the standard desired.
- The main issues identified by Counsel Assisting in respect of the Chief Officer of the CFA and the senior CFA officers are all systemic issues. The same issues are identified in respect of the Chief Fire Officer of DSE and the senior DSE officers but in respect of the Murrindindi fire as opposed to the Kilmore East and Churchill fires. Given that the primary criticisms relate to systemic issues the State submits that the Commissioners should not single out individuals to take blame whether from Victoria Police, CFA or DSE.
- It is submitted that in their final report the Commissioners refrain from adopting the emotive and gratuitous language used by Counsel Assisting. It is further submitted that the Commissioners distance themselves from the unnecessary attack made by Counsel Assisting on individuals.
COUNSEL ASSISTING PROPOSED RECOMMENDATIONS AND THE STATE RESPONSE
Counsel Assisting makes 6 recommendations.
- The State supports 1 proposed recommendation
- The state supports 3 proposed recommendations in principle
- The State does not support 2 proposed recommendations
These are described below.
The following is a broad summary of Counsel Assisting’s proposed recommendations and the State response. The full detail of the proposed recommendations can be read here.
CA proposed recommendation
- That the State resolve the question of whether the coordination of Victoria Police is, during major fires, to be principally discharged from the new State Control Centre or the SERCC.
The State supports this recommendation
2. CA proposed recommendation
That the State resolve whether the OESC is to continue to be the principal conduit of information to the Coordinator in Chief and Minister during emergencies. If so, then the responsibility of the OESC to compile and convey such information should be documented.
The State supports this proposed recommendation in principle insofar as it recommends that the responsibility of OESC to compile and convey information during emergencies to the Coordinator in Chief and Minister should be documented.
3. CA proposed recommendation
That the delegations to and responsibilities of officers of Victoria Police with emergency management responsibilities should be documented in the SERP.
The State supports in principle this proposed recommendation. The State does not support the specific identification and documentation in the SERP of ‘any other police officer intended to exercise any function.’
4. CA proposed recommendation
That the State resolve which entity is to act as the peak decision making body on days when more that one emergency service is involved in the response to major fires.
The State does not support this proposed recommendation.
The State submits that the decision making role should be retained by the control agencies and not by committees. That is particularly the case given the criticisms made by Counsel Assisting of ‘emergency management by committee’.
5. CA proposed recommendation
That in circumstances where the criteria for the declaration of a State of Disaster under the Emergency Management Act are in
existence, the Coordinator in Chief and the State Coordinator of DISPLAN ought provide the Premier with formal advice as to whether or not the existence of those criteria justifies such a declaration being made.
The State does not support this proposed recommendation.
The State emphasises that consideration of the need for a declaration of a state of disaster should be driven by the need to exercise the relevant powers rather than when the conditions precedent to the exercise of the discretionary power to make such a declaration appear to be in existence. It is not the existence of the "criteria" which justify such a declaration being made but the need to exercise the relevant powers.
6. CA proposed recommendation
That the responsibilities of the Chief Officer of CFA and the Chief Fire Officer of DSE be the subject of legislation and reflected in the EMMV and SERP to the following effect:
- the responsibility for the issuing of warnings to the public now imposed on the Chief Fire Officer CFA in s50B of the Country Fire Authority Act;
- the obligation to devise and enact a Statewide plan for the management of multiple level 3 fires on Extreme and Code Red Days which requires satisfaction of matters including;
o that the resourcing of the individual fires is consistent with the overall approach to the fires in light of their relative severity;
o that the Incident Action Plans for the fires are in conformity with the statewide approach and not inconsistent with each other.
- the obligation to supervise the management of level 3 fires by Incident Management Teams on Extreme and Code Red Days, which requires satisfaction of matters including:
o that a level 3 Incident Controller is in place;
o that an Incident Action Plan has been prepared which is adequate for the management of the fire;
o that a Safety Officer has been appointed; and
o that the Information Unit and / or Public Information Officer are issuing timely and accurate warnings to the community.
The State supports in principle much of proposed recommendation. However, the State wishes to emphasise the following points:
The EMMV and the SERP are the appropriate place for these provisions, not legislation, as placing these provisions within legislation makes flexibility and improvement difficult.
It is unrealistic and potentially dangerous to promote the level of supervision of Incident Management Teams contemplated by Counsel Assisting. In particular, the State does not agree that there should be supervision of the adequacy of the Incident Action Plan as 'in emergencies, there needs to be the capacity to improvise and make intuitive judgments on the basis of incomplete information'
Insofar as it is appropriate for there to be an oversight role of IMTs it should be carried out by the Area of Operations Controllers;
The oversight role of AOCs can be formalised in the EMMV and SERP and should be expressed to require the AOCs to have regard to the following essential arrangements:
(a) That a Level 3 IMT is in place;
(b) That an IAP has been prepared within a reasonable time;
(c) That a Safety Advisor has been appointed;
(d) That the Information Unit and/or Public Information Officer are issuing timely and accurate warnings to the community;
(e) That dispatch arrangements are in place;
(f) That a communications plan is in place;
(g) That the fire is sectorised appropriately;
(h) The potential of a fire and its risk to communities;
(i) Adequacy of resources being applied; and
(j) Any other matters the AOC deems appropriate.
Written submissions have also been made by the following other parties:
- Police Association of Victoria
- Commonwealth of Australia
- Submission on behalf of Russell Rees
- Submission on behalf of Christine Nixon
The full written submissions from the State and other parties can be found at the Royal Commission website.
The submissions from Counsel Assisting will be available using the same link shortly, once they have been amended to reflect the withdrawal of some proposed findings against individuals.
Oral submissions were made on this topic on 27 May 2010.
A transcript of these oral submissions will be available at the Royal Commission website.