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act fires
january 2003
submissions of counsel
assisting
inquests into the death of dorothy mcgrath, Alison mary
Tener, peter brabazon brooke
and douglas john
fraser
and
inquiry into the fires of january 2003
Lex
lasry qc
ted woodward
counsel assisting the coroner
2 April 2006
Between January and March the daily fire weather is determined by the passage of high and low pressure systems across southern Australia. The most serious weather occurs just after a high pressure system has moved out in the Tasman Sea and a cold front is approaching across Victoria and southern NSW. Strong north-westerly winds often precede the front and as they are generated from dry air from the interior of Australia they may be extremely dry and very hot. Most of the major fires in recent years have occurred in these months when strong north-westerly winds precede the southerly change. If the change occurs while the fire is still burning there is a sudden wind shift from the north-west to the south-west and large areas of country can be burnt. Under the worst recorded conditions grass fires can travel up to 18 to 20 km per hour and fires more than 60 km away may threaten the ACT. An area of more than 60,000 hectares may be burnt in eight hours and if only two or three fires break out at the same time it is possible for them to burn most of the ACT. Also, it must be remembered that fires starting within the ACT under these conditions have the potential to burn through to the south coast.
It is important that we recognise that, under these extreme fire weather conditions, which may occur every five years or so, it is impossible for any fire suppression organisation to control the fire if it is burning in abundant fuels. While much can be done with early detection and rapid initial attack, if a fire burns from some distance away and enters the ACT in a broad front then fire suppression forces available in both rural and urban fire brigade services will be overwhelmed. Prevention of loss of life and damage to property can be undertaken only by individual home-owners. Thus it is vitally important for the ACT Bush Fire Council to promote a sound understanding of fire spread and what can be done under severe conditions to protect life and property and extend this to individual home-owners through the volunteer bushfire brigade movement.
The suburban area of Canberra has never been directly hit by a large fire travelling in from the west. However, the potential weather to create widespread havoc within the suburban area has existed and there are adequate examples in history to indicate the potential for a bushfire disaster. In 1939 fires burning west of the Brindabella ranges in the Mountain Creek and Flea Creek catchments rained firebrands on Capital Hill, now the site of Parliament House.
During a severe summer the orientation of the pressure systems over southern Australia means that a cold change occurs roughly on a seven day interval. Therefore, during the week the fire danger conditions may be low to moderate immediately after a cool change and gradually build up to extreme just before the next cool change passes. [1]
1.1.1 The Inquests and Inquiries. 10
1.1.2 Issues in the Inquests and Inquiry. 10
1.1.3 Purpose of These Submissions. 10
1.2 The Course of the Inquest.. 12
1.2.1 Preliminary Directions Hearings. 12
1.2.3 Phase 1 of the Evidence. 15
1.2.4 Findings Concerning the Deaths. 15
1.2.5 Interim Directions Hearing. 17
1.2.6 Phase 2 of the Evidence. 18
1.2.7.8 The Chief Minister and Senior Departmental Officers. 26
1.2.7.9 Media and Administration. 27
1.2.7.11 Other Service Management Team Officers. 29
1.2.7.13 Officers of the ACT Fire Brigade and Ambulance Service. 31
1.2.7.15 Officers of the NSW Incident Management Team and Related Witnesses. 32
1.2.7.16 Officers of the Australian Federal Police. 34
1.2.7.17 Bureau of Meteorology and Lightning. 35
1.2.8 The Application to Whitlam J. 37
1.2.9 The Application to the Court of Appeal of the ACT Supreme Court 38
1.2.10 Relevance of Fuel Management 41
CHAPTER 2 conditions leading up to the fires.. 43
2.1 History of Fires and Fire Risk in the ACT.. 43
2.1.1.1 Rural Fire Control Manual 43
2.1.1.4 Fires in Neighbouring Jurisdictions. 48
2.2 Fuel Management and Fuel Loads. 51
2.2.1 The History of Fuel Management in the ACT. 52
2.2.1.1 The Cheney Fuel Management Report 52
2.2.1.3 Mr McRae’s “Phoenix Imperative”. 55
2.2.2 The State of the Fuels at the Time of the Fires. 56
2.2.2.2 Brindabella National Park. 58
2.3 ACT Emergency Services–Structure and Operation.. 59
2.3.1 The Creation and Structure of the ESB.. 59
2.3.2 Operational Arrangements. 60
2.3.2.2 The Service Management Team.. 61
2.3.2.3 The Implementation of the SMT Concept 62
2.3.2.4 Management and Role of the Media Unit 66
2.3.2.5 The ESB Headquarters as a Control Centre. 67
2.3.2.6 Allocation of Roles. 68
2.3.2.7 Weight of Response. 68
2.4.1.1 Relevance of Antecedent Weather Conditions. 69
2.4.1.4 Fire Danger Rating System.. 70
2.4.1.5 The McArthur Meter and Project Vesta. 71
2.4.1.6 Deteriorating Conditions During 2002. 74
2.5.1 Relevance of Issues of Pre-Fire Preparation. 79
2.5.1.2 The Evidence and Cross-examination of Mr Roche. 80
2.5.1.3 The Evidence of Mr Jeffrey. 82
2.5.1.4 The Evidence of Mr Bartlett 83
2.5.2 Community Awareness of Risk and Appropriate Preparations. 84
2.5.2.1 ESB Mission and Objectives. 84
2.5.2.2 Community Awareness Material and Community Appreciation of Risk. 85
2.5.2.3 Pre-Season Publicity. 88
2.5.2.4 Expert Evidence on Community Awareness. 89
2.5.2.5 Survey of Households. 93
2.5.3 Pre-planning of Aircraft and Heavy Plant 94
2.5.4 Fire Trail Mantenance and Access to the Fires. 96
2.5.5 Recognition of the Importance of Rapid Aggressive Response. 97
CHAPTER 3 the fires: origin, path and response. 99
3.2.1 Formation of the SMT. 102
3.2.1.1 Notification of the Fires and First Response. 102
3.2.1.2 Allocation of Responsibilities. 103
3.2.2.1 Arrival at the Fire. 106
3.2.2.3 Assessment by Ms Arman. 108
3.2.2.4 Mr Graham’s Telephone Conversations. 110
3.2.2.5 Ms Arman’s Sitrep to Comcen. 113
3.2.2.6 The Decision to Withdraw.. 115
3.2.2.7 The Attitude of the Crews. 117
3.2.2.8 Communication of the Decision to Withdraw.. 120
3.2.2.9 Mr Graham’s Role in the Decision. 120
3.2.2.10 Comments on the Decision to Withdraw.. 122
3.2.2.11 Cheney’s Evidence on the Decision to Withdraw.. 124
3.2.2.12 Roche’s Evidence on the Decision to Withdraw.. 127
3.2.2.13 Nicholson’s Evidence on the Decision to Withdraw.. 130
3.2.2.14 Ms Arman’s Report to Mr Graham Post-Withdrawal 132
3.2.2.15 Preparations for the Following Day. 133
3.2.2.16 Fire Development Overnight 135
3.2.3.1 Initial Assessment 136
3.2.3.3 The Attempt to Locate the Fire. 137
3.2.3.4 The Decision to Withdraw.. 138
3.2.3.5 Preparations for the Following Day. 139
3.2.3.6 Expert Evidence on the Decision to Withdraw From the Stockyard Fire. 139
3.2.3.7 Fire Development Overnight 141
3.2.4.1 Initial Assessment 141
3.2.4.2 Decision Not to Resource the Fire. 141
3.2.4.3 Preparations for the Following Day. 142
3.2.5.1 Initial Assessment 142
3.2.5.2 Queanbeyan Meeting. 145
3.2.5.3 The Baldy Range Trail as the Eastern Containment Line. 145
3.2.5.4 Expert Evidence on the Eastern Containment Line. 148
3.2.5.5 The Western Containment Line. 151
3.2.5.6 Expert Evidence on the Western Control Line. 153
3.2.5.7 Time to Complete the Strategy. 155
3.3.1.1 Initial Assessment 158
3.3.1.2 Adequacy of Firefighting Resources at the Bendora Fire. 159
3.3.1.3 Attempts to Control the Bendora Fire. 161
3.3.1.4 Arrival at the Stockyard Spur Fire and Initial Assessment 164
3.3.1.5 Adequacy of Firefighting Resources at the Stockyard Spur Fire. 165
3.3.1.6 Attempts to Control the Stockyard Spur Fire. 167
3.3.2.1 Mr Lucas-Smith’s Radio Interview.. 170
3.3.2.2 Mr Bartlett and the ACT Forests Crews. 170
3.3.2.3 Aerial Reconnaissance by Mr McRae and Mr Castle. 172
3.3.2.4 Bendora Fire “Severely Under-resourced”. 174
3.3.3.1 The Baldy Range Spot Fire. 175
3.3.3.2 Commencing the Power Line Trail Burning-out Operation. 177
3.4 10 to 14 January 2003. 179
3.4.1 Fire Development and Suppression Activities. 179
3.4.1.1 McIntyre’s Hut Fire Burning-out Operations. 179
3.4.1.2 A Threat to Urban Assets. 180
3.4.1.3 Move to Indirect Attack on the ACT Fires. 181
3.4.1.4 The Mt Gingera Fire. 181
3.4.1.5 Lack of Maps, IAPs and Overnight Planning. 182
3.4.1.6 ACT Fires Continue to Expand. 184
3.4.2.2 First Request for Commonwealth Assistance. 186
3.4.2.3 Castle Interview.. 187
3.4.2.4 Briefing of Mr Stanhope. 188
3.4.2.5 Telephone call from Mr Cheney to Mr Lucas-Smith. 188
3.4.3.1 Interview with Mike Castle. 190
3.4.3.2 Morning Planning Meeting. 190
3.4.3.3 Afternoon Planning Meeting. 191
3.4.3.4 Mr Lucas-Smith’s Report of His Telephone Conversation With Mr Cheney. 192
3.5 15 to 16 January 2003. 198
3.5.1.1 Morning Planning Meeting. 198
3.5.1.2 Bureau Weather Forecast 198
3.5.1.3 Positive Aspects to Be Made Public. 200
3.5.1.4 Meetings at Queanbeyan. 200
3.5.1.5 Further ACT Requests for Commonwealth Assistance. 213
3.5.1.6 Afternoon Planning Meeting. 215
3.5.1.7 NSW Media Release. 218
3.5.1.8 Val Jeffrey Situation Update and Warning. 220
3.5.1.9 Telephone Call Graham to Byrnes. 221
3.5.1.10 Cabinet Briefing Paper 223
3.5.2.1 Progress of Firefighting Operations. 226
3.5.2.4 Morning Planning Meeting. 240
3.5.2.5 Midday Press Conference. 242
3.5.2.6 Val Jeffrey E-mail. 245
3.5.2.8 Briefing of the ACT Fire Brigade and ACT Ambulance Service. 253
3.5.2.10 ACT Fire Brigade and ACT Ambulance Service Planning. 267
3.5.2.11 Afternoon Planning Meeting. 269
3.5.2.12 Lucas-Smith Radio Interview.. 270
3.5.2.13 NSW Rural Fire Service Media Release. 270
3.6 17 to 18 January 2003. 271
3.6.1.2 Morning Planning Meeting. 273
3.6.1.3 Midday Press Conference. 275
3.6.1.4 Noon Media Updates. 278
3.6.1.5 Agreements and Protocols With NSW... 279
3.6.1.6 Deployment of Aerial Incendiaries at the McIntyre’s Hut Fire. 281
3.6.1.7 Deteriorating Conditions During the Afternoon. 284
3.6.1.8 ACT Fire Brigade Incident Action Plan. 287
3.6.1.9 15:45 Hours Media Update. 288
3.6.1.10 Request for Commonwealth Assistance. 290
3.6.1.11 Fire Spread Predictions. 290
3.6.1.12 Evening Planning Meeting. 293
3.6.1.13 Cheney Approach to Fire Spread Prediction on 17 January 2003. 299
3.6.1.14 Ring-Around to Rural Lessees. 300
3.6.1.15 Discussion of Warnings to Urban Canberra. 302
3.6.1.16 Further Planning by the ACT Fire Brigade and the ACT Ambulance Service. 303
3.6.1.17 20:50 Hours Media Update. 304
3.6.1.18 17 January Overnight Operations. 307
3.6.2.1 Mr Lucas-Smith’s “Heart of Hearts” Prediction. 308
3.6.2.2 Castle Media Interviews. 309
3.6.2.3 Evacuation Planning Meeting. 312
3.6.2.4 Morning Planning Meeting. 317
3.6.2.5 Post Meeting Predictions. 324
3.6.2.6 Activation of the POC at Winchester and Predictions by Mr Prince. 326
3.6.2.7 Ms Larkin’s Attempts to Contact Mr Castle. 329
3.6.2.8 Midday Media Update. 329
3.6.2.9 Midday Press Conference. 332
3.6.2.10 Discussions Between Newton and Castle. 337
3.6.2.11 Further Media Update and Canberra Connect 338
3.6.2.12 Issue of the SEWS. 339
3.6.2.13 Declaration of a State of Emergency. 341
3.7 The Fires Reach Canberra.. 342
3.7.1 Fire Behaviour and Spread on 17 and 18 January 2003. 342
3.7.1.1 McIntyre’s Hut 17 January 2003. 343
3.7.1.2 Bendora 17 January 2003. 344
3.7.1.3 McIntyre’s Hut 18 January 2003. 344
3.7.1.4 Bendora 18 January 2003. 346
3.7.2 Expert Evidence on Fire Spread Into and In the Suburbs. 347
3.7.2.1 Peter Ellis – The Effect of Garden Types on Spread. 347
3.7.3 Community Response to the Growing Risk and Impact of the Fires. 353
3.7.3.3 Other Chapman Residents. 356
3.7.3.5 Other Urban Residents. 364
3.7.3.7 Other Evidence Relevant to the Response and Experience of Residents. 369
3.7.4 Expert Evidence on Warnings. 372
3.7.5 Warnings After 18 January 2003. 381
CHAPTER 4 jurisdiction of the coroner.. 392
4.1 Statutory Provisions and Role. 392
4.2 Jurisdiction and Causation.. 393
4.2.1 The Decision of the Court of Appeal 393
4.2.2.2 Causation in the Coronial Context 397
4.2.2.3 Travel Compensation Fund v Tambree. 397
4.2.2.4 The Test in This Inquest 398
4.2.2.5 The Test in the Context of Adverse Findings. 398
4.2.3 The Standard of Proof 399
4.2.4 Jurisdictional Issues. 400
CHAPTER 5 Initial Response. 400
5.1 Initial Response to the ACT Fires Generally.. 400
5.1.1 The Historical Context For the ACT Fires. 400
5.1.2 Knowledge of the Conditions. 400
5.1.3 Rapid Aggressive Response. 400
5.1.4 The Operations Officer Role on 8 January. 400
5.1.7 Flaws in the SMT Structure. 400
5.2.1 Response and Arrival at the Fire. 400
5.2.2 The Decision to Withdraw.. 400
5.2.2.1 The Effect of the Decision. 400
5.2.2.2 The Making of the Decision. 400
5.2.2.3 The Attitude of the Crews. 400
5.2.4 Resources for the Following Day. 400
5.3 The Stockyard Spur Fire. 400
5.5 The McIntyre’s Hut Fire. 400
5.5.1 The Strategy Adopted. 400
5.5.2 Summary of Submission. 400
5.5.4 Eastern Containment Line. 400
5.5.5 Western Containment Line. 400
5.5.6 Delay in Commencing Burning. 400
5.5.7 Aerial Incendiaries. 400
6.2 Submission in Summary.. 400
6.3 The Risk Recognised and Understood.. 400
6.4 Risk Apparent on 13 January 2003. 400
6.4.1 Request for Commonwealth Assistance and Media Interview.. 400
6.4.2 Lucas-Smith’s Conversation With Cheney. 400
6.4.2.1 The Substance of the Conversation. 400
6.4.2.2 The Discussion at the Planning Meeting. 400
6.4.2.3 Mr McRae’s Dismissal of Mr Cheney’s Information. 400
6.4.2.4 Flaws in the ESB Approach to Community Information. 400
6.5 Koperberg Discussion – 15 January 2003. 400
6.6 Other Developments on the Afternoon of 15 January.. 400
6.7 The Decision to DEfer A Warning to the Public.. 400
6.7.1 The Cabinet Briefing. 400
6.7.2 The Midday Press Conference. 400
6.7.3 Briefing of the ACT Fire Brigade and ACT Ambulance Service. 400
6.7.6 The Situation at the End of 16 January. 400
6.8.1 Canberra Times Article. 400
6.8.2 Morning Planning Meeting. 400
6.8.3 Midday Press Conference. 400
6.8.4 Agreements and Protocols with NSW.. 400
6.8.5 Events in the Afternoon of 17 January. 400
6.8.6 ACT Fire Brigade Planning. 400
6.8.8 Evening Planning Meeting. 400
6.8.8.1 Fire Spread Predictions. 400
6.8.8.2 Warnings to the Urban Community. 400
6.8.9 20:50 Media Release. 400
6.8.10 Other Developments. 400
6.8.11 The Position as at the End of 17 January. 400
6.9.1 The Events of the Early Morning. 400
6.9.1.1 Evacuation Planning Meeting. 400
6.9.1.2 Morning Planning Meeting. 400
6.9.1.3 The McRae Trigger - Again. 400
6.9.2.1 The Midday Media Release. 400
6.9.2.2 Midday Press Conference. 400
6.9.2.3 The Position at Midday. 400
6.9.3.2 The Position at 2:40. 400
6.10 Expert Evidence on the Warnings Issue. 400
6.10.1 Pre-season Awareness. 400
6.10.2 Warnings – Timing and Content 400
6.10.2.1 Koperberg and Cheney. 400
6.10.2.2 Roche’s Evidence. 400
6.10.2.3 Nicholson’s Evidence. 400
6.11 The Issue of Warnings and the Deaths. 400
CHAPTER 7 property damage, injury and death.. 400
CHAPTER 8 recommendations.. 400
1. Dorothy McGrath, Alison Mary Tener, Peter Brabazon Brooke and Douglas John Fraser all died as a direct result of a fire that burnt into Canberra on 18 January 2003. That fire, which became known as the McInytre’s Hut fire, was one of a series of fires started by lighting strikes in the Brindabella Ranges east of Canberra during the afternoon of 8 January 2003; at McIntyre’s Hut in New South Wales and at Bendora, Stockyard Spur and Mt Gingera in the ACT. An inquest into each of the deaths pursuant to s13 of the Coroners Act 1997 (“Act”) and an inquiry into the fires pursuant to s18 of that Act (held concurrently) (“Inquest”) commenced hearing evidence on 7 October 2003. The evidence concluded on 25 October 2005. We make the following submissions in the Inquest.
2. Ultimately, two broad issues relevant to the cause of the fires that wreaked such devastation in Canberra and surrounding rural areas were raised on the evidence:
a. first, the adequacy of the initial response to the three fires in the ACT and the McIntyre’s Hut fire in NSW; and
b. secondly, once the fires had become uncontrollable, the timeliness and adequacy of warnings to the public likely to be affected the conflagration which occurred on 18 January 2003.
3. In our submission, the second of these broad issues is also relevant to the manner and cause of two of the deaths – that of Alison Tener and Dorothy McGrath.
4. These submissions are intended to perform several functions to assist Your Honour. Firstly, they include a comprehensive narrative of the evidence relevant to the two issues identified above (chapters 2 and 3). If Your Honour is satisfied that the narrative fairly summarises the evidence of what occurred, or does so once supplemented or amended based on submissions on behalf of represented parties, you may wish to adopt all or part of it as the narrative established by the evidence for the purpose of compiling your report. The narrative is also intended to be the platform from which we make submissions as to the findings, comments and recommendations you should make under the Act.
5. These submissions are divided into chapters, as follows:
a. Chapter 1 is a preliminary chapter which broadly describes the course of the Inquest together with some discussion of the collateral proceedings before Whitlam J[2] and the subsequent proceedings before the ACT Court of Appeal[3];
b. Chapter 2 commences the narrative of what occurred referring by way of background to the history of fires and fire risk in the ACT, community education programs, the history, structure and operation of the ESB, the antecedent weather conditions leading to the fires on 8 January 2003 and an outline of what the evidence reveals about the fuel loads then in existence in the areas in the path of the fires;
c. Chapter 3 describes the origin and path the fires took and the response to each of the fires by the emergency services in the ACT and NSW, tracing chronologically the events between 8 and 18 January 2003, as revealed by the evidence.
d. Chapter 4 examines briefly the issue of the Coroner’s jurisdiction, although that matter was discussed at some length by the ACT Court of Appeal in R v Doogan;
e. Chapter 5 is our submissions on the evidence concerning the initial response to the fires and the findings the Court should make on that topic;
f. Chapter 6 is our submissions on the evidence concerning the warnings to the public about the fires as they developed, or the lack of them, and on the findings the Court should make on that topic;
g. Chapter 7 deals with the detail of property damage, injury and death;
h. Chapter 8 deals briefly with recommendations and, as stated in that section, will be supplemented in due course by further submissions as to appropriate recommendations the Court might consider making.
6. For the most part, the evidence summarised in chapters 2 and 3 informs our submissions in chapters 5 and 6 on cause and origin of the fires and manner and cause of the deaths, thus the relevance of the evidence is apparent from the cross-references in those latter chapters to the relevant paragraphs of chapters 2 and 3. In the relatively few instances where we have not specifically referenced the evidence summarised in chapters 2 and 3 in those latter chapters, we have included it because, in our submission, it is a necessary part of the broader factual matrix of the evidence that is directly relevant to Your Honour’s jurisdiction.
7. In our submission, Your Honour should find that chapters 2 and 3 of these submissions are an accurate summary of all of the evidence both of the conditions leading up to the fires and what actually occurred from 8 to 18 January 2003, in so far as those matters are relevant to the cause and origin of the fires and the manner and cause of the deaths. Those chapters themselves contain no other submissions as to the findings for which we contend, save in respect of formal findings as to the cause of the initial ignition of each of the fires[4]. As we have explained, our submission on the findings that we contend are open based on our narrative of the evidence, can be found in chapters 5 and 6.
8. The Inquest was formally opened by Your Honour at a directions hearing on 16 June 2003. There was a further directions hearing in the Inquest on 1 September 2003, before the commencement of the first phase of the evidence in the Inquest on 7 October 2003. That first phase concluded on 15 October 2003. There was a further directions hearing on 15 December 2003 concerning the commencement of the second phase of the evidence in the Inquest, which began on 16 February 2004 and concluded, after a number of lengthy delays, on 25 October 2005.
9. Applications were made during the first directions hearing for leave to appear. Your Honour gave leave to us to appear to assist you[5]. Mr Bayliss of the ACT Government Solicitor sought leave to appear on behalf of the ACT, and foreshadowed that in relation to those employees of the Territory who were to be called as witnesses, that leave to appear on their behalf would also be sought. Mr Bayliss explained that the appearance on behalf of the Territory encompassed certain agencies which were administrative sub-units within the Territory, but did not have any independent legal persona. In responding to the application by Mr Bayliss for leave, we submitted that: We don’t object to the grant of leave to the entity of the Australian Capital Territory at this stage. Our concern and its been expressed to my learned friend, and no doubt will be again, is that as the hearing develops, there is a significant prospect that individuals and groups within that broad entity will have different interests and I think that’s clear from the issues which have been raised on a public record about these fires. But I agree, with respect, that at this stage, they may not be clear… Our concern is that in the event of an individual or some other entity requiring representation, separate from our learned friend, that that not result in loss of time. Mr Bayliss agreed with Mr Lasry and indicated that he thought, once a witness list was made available to the parties, decisions could be made at that stage whether there was potential for conflicts or a variance of interest. Your Honour then made comments echoing the concerns expressed by us[6].
10. An application was made for leave to appear on behalf of the United Firefighters Union and on behalf of individual firefighters who were members of the union and may be called to give evidence. Your Honour refused leave to the union, but indicated that you proposed to grant leave on a case by case basis for the representation of individual firefighters who may be called to give evidence[7]. Your Honour granted leave to the Australian Federal Police to be represented during the hearing of the matter[8] and also granted leave to Mt Stitt QC to appear on behalf of ActewAGL[9]. An application was made by Mr Livingston of Lamond Howard & Associates for leave to appear on behalf of 170 affected victims of the fire. In refusing leave, Your Honour noted that some of the persons represented by Mr Livingston and Mr Livingston himself were free to attend the hearings and obtain transcript and could bring to our attention any matters which he felt were not being ventilated sufficiently[10]. Your Honour also refused leave to appear to Mr Mossop on behalf of Chubb Insurance Company of Australia Ltd whose interest related particularly to the destruction of the Mt Stromlo Observatory[11]. Finally, an application for leave to appear was made by Mr Lowe in his capacity as President of the ACT Sustainable Rural Lands Group. Because of a concern that members of the group may be subject to criticism concerning their management of lands affected by the fires, Your Honour adjourned consideration of the application to 1 September 2003[12].
11. In the course of further submissions in relation to the subsequent conduct of the Inquest, we indicated to Your Honour that we anticipated that at the end of the first phase of the evidence, we would endeavour to formulate a list of issues in conjunction with those who had been given leave to appear and that the formulation of that list of issues may involve a debate before Your Honour. We informed Your Honour that it remained to be seen whether, after the first phase of the evidence, people would come to understand that they were at least at risk of some adverse finding.[13]
12. There was a further directions hearing on 1 September 2003. At that directions hearing, Mr Lowe on behalf of the ACT Sustainable Rural Lands Group made further submissions in support of his earlier application for leave to appear. Your Honour granted Mr Lowe limited leave to appear for the purposes of defending any specific allegation that was made about the conduct of any member of the ACT Sustainable Rural Lands Group.[14]
13. On 7 October 2003, we opened the evidence in this case to Your Honour. In that opening we submitted that the bushfires culminating in the events of 18 January 2003 may have been preventable or at least its intensity lessened[15]. We described the lack of aggression demonstrated in response to these fires at the earlier stages – that is, during the 8th, 9th and 10th of January[16]. In these submissions, we have referred to that topic as the initial response and, within the ambit of that topic, we have examined events between 8 and 10 January. In our submission, no fire suppression measures that might practicably have been implemented thereafter were capable of controlling these fires before 18 January 2003. While we have referred to aspects of the fire suppression effort after 10 January, any real chance of controlling each of the three ACT fires and the McIntyre’s Hut fire was lost when opportunities for a more aggressive response in the initial stages of each of the fires were not taken or were overlooked.
14. In the course of opening, we also indicated that the nature and timing of public warnings would be examined with some care, and that has occurred. We submitted that the evidence may suggest that the community in the ACT were not given anywhere near the information they needed to cope with this catastrophe[17]. In our submission, this is what the evidence shows. But the reasons why proper information and warnings were not disseminated, is a matter of some contention.
15. Although a number of qualified people had expressed the view to senior personnel in the Emergency Services Bureau (“ESB”) that Canberra was under threat from the fires, those personnel either could not accept, or were unwilling to admit publicly, that the threat existed. In our submission, there was no valid reason why the ACT community was not given adequate warning of the prospect of the fires burning into Canberra. Suggestions of not wanting to cause panic or not being able to be specific about exactly where and when such an event would occur, do not justify the failure to give timely and informative warnings.
16. We also raised the question as to whether the border between the ACT and NSW was in some way an obstacle to effective bushfire fighting[18]. It is clear from the evidence that the fire that caused most damage to Canberra started in NSW, and thus the attempts to control that fire and predictions and warnings about its likely impact within the ACT, were properly the subject of evidence during the inquest. We will, however, deal with the jurisdictional questions raised by counsel for the NSW agencies in December 2003. In our submission, it is unlikely that much, if anything, in our submissions will raise the difficulties to which he referred.
17. Management of fuel loads was also raised in our opening[19], although in their judgment in R v Doogan, fuel management and associated issues were topics which the Court of Appeal made tolerably clear were likely to be too remote from the concept of cause and origin of the fires to justify detailed examination in the course of the Inquest. We have therefore restricted our examination in these submissions to what the evidence shows about the state of the fuel loads in the affected areas and references to the advice which had previously been given by a variety of people who might be described either as experts or stakeholders about how they should be controlled. In our submission, this aspect of the fuel loads issue is important to understanding the condition in which the fires started and then developed, and is therefore not remote from the issue of cause and origin.
18. The first phase of the evidence was largely taken up with the expert evidence, including the evidence of representatives of the Bureau of Meteorology, the evidence of Mr Cheney concerning aspects of fire behaviour fire spread and the path of the four fires from ignition in the afternoon of 8 January 2003 until they burnt into the suburbs of Canberra on 18 January. Mr Cheney’s evidence in this first phase also included commentary and a critique of aspects of the fire suppression undertaken during that period. However, Mr Cheney made it clear during his evidence that much of his report was based on hearsay, he expected it to be tested during the second phase of the evidence and he would be filling any gaps in his report as the Inquest progressed[20]. Evidence was also given in this first phase by Mr McBeth, about his report prepared in 1994 which included concerns about the inevitability of a conflagration fire impacting on the suburbs of Canberra, by the lightning chaser Mr Tycehurst and by Dr Peter Ellis, on his research on the contribution of garden types to the spread of fire in the suburbs on 18 January 2003. The first phase of the Inquest concluded with the evidence and preliminary findings on the four deaths.
19. At the conclusion of our opening, we indicated that at the conclusion of the evidence in phase one of the Inquest, we would present all the evidence specifically relating to the four deaths and invite you to make findings in relation to those deaths on a preliminary basis, so that at least for the families of those people, the matter will be brought to a conclusion for the benefit of those people[21]. That suggestion was repeated by us later in the proceedings and Your Honour indicated that the findings would be preliminary[22].
20. It was only in the case of the deceased Douglas Fraser that any member of the family sought to be present for the hearing of evidence. At the conclusion of the evidence concerning the death of Douglas Fraser, you made a finding in relation to Mr Fraser pending the ongoing inquiry into the fire[23], that he died between 4:00 pm and 6:15 pm on Saturday 18 January 2003 at his home at 23 Burrendong Street, Duffy and that the cause of death was most likely due to smoke inhalation from a fire which entered Duffy at about 3:15 pm on Saturday 18 January 2003.
21. Later, in what Your Honour described as interim findings[24], you further found that:
a. Alison Mary Tener died on the afternoon of Saturday 18 January 2003 inside her home at 9 Burrendong Street, Duffy. The cause of death was most likely smoke inhalation from a fire which had entered the suburb of Duffy at about 3:15 pm on Saturday 18 January 2003.
b. Peter Brabazon Brooke died on the afternoon of Saturday 18 January 2003 at his home at 40 Tullaroop Street, Duffy. The cause of death was most likely a heart attack which he suffered as the effect of a fire which had entered the suburb of Duffy at about 3:15 pm on Saturday 18 January 2003.
c. Dorothy McGrath, also known as Dolly McGrath, died on the afternoon of Saturday 18 January 2003 at her home at Cottage 5, Stromlo Forestry Settlement, RMB 113 Cotter Road, Stromlo. The cause of death was most likely the effects of a fire and most likely thermal injury from a fire which had entered the Stromlo forestry settlement at about 3:00 pm on Saturday 18 January 2003.
22. We outline in these submissions[25] whether it is open to Your Honour to make further findings concerning the manner and cause of each of the four deaths. In our submission, it is, particularly as to two of the deaths – Alison Tener and Dorothy McGrath
23. The evidence adduced in phase one of the Inquest assisted the preparation of the list of issues that we had foreshadowed in the initial directions hearings would set the framework for the evidence in the second phase. We distributed a draft of that issues list to Your Honour and the represented parties in advance of the second directions hearing on 15 December 2003. The draft list was headed Phase 2 Issues List and was accompanied by a memorandum explaining the list and indicating how we envisaged the list would assist in narrowing the issues to be examined in the course of the Inquest. We informed Your Honour at the directions hearing that we had received a response from two parties in relation to the draft list, although none of those nor anyone else seems to take significant exception with the general process[26].
24. We also informed Your Honour at the directions hearing that our expectation was that the program of witnesses we would follow would essentially be to start with senior officers who are witnesses, including people such as Mr Lucas-Smith, Mr Bennett, Mr Castle, Mr Koperberg, Mr Keady and the Chief Minister and then to move down the scale to the ACT Service Management Team, to the Incident Management Team at Yarrowlumla and to fire controllers and firefighters in the field, police witnesses, a representative sample of residents and then the three named experts: Mr Cheney, Mr Roche and Mr Leonard.
25. Mr Johnson QC for the Territory confirmed that the Territory had had an opportunity to consider the issues list and that there was nothing that Mr Johnson wished to be added or taken from the list. It would seem to in general terms summarise issues that appear to arise[27]. Mr Bret Walker QC with Mr Erskine sought Your Honour’s leave to be heard for the State of New South Wales, instructed by the legal officer of the Department of Environment & Conservation (formerly the NSW National Parks & Wildlife Service) and by the NSW Rural Fire Service. However, he indicated that he was not then asking for leave under s42 of the Act. Mr Walker then went on to make submissions concerning the issues list and questions of jurisdiction dealt with elsewhere in these submissions[28].
26. Despite the fact that:
a. the issues list was a genuine attempt to give the longer phase of the evidence some structure and assist the parties to understand the issues they may have to confront; and
b. the process of production of the list was supported by the represented parties, who also generally agreed that the issues identified therein were appropriate for examination,
both the production of the list and its contents were heavily criticised during submissions by the represented parties who pursued the application to the Court of Appeal discussed below.
27. The second phase of evidence in the Inquest commenced on 16 February 2004, with witnesses being called more or less in accordance with the plan referred to at the directions hearing on 15 December 2003. Notwithstanding issues raised at the first directions hearing and privately with the representatives of the Territory and the evidence given (particularly by Mr Cheney) during the first phase of the Inquest, counsel appeared at the commencement of the second phase only for the Territory. In particular, Mr Lucas-Smith, Mr Castle, Mr Graham, Mr McRae and Mr Bennett were not independently represented.
28. On 19 February 2004, shortly before Mr Johnson for the Territory was due to commence to cross-examine Mr Lucas-Smith, Your Honour noted that, having listened to the evidence of Mr Lucas-Smith, Your Honour was curious to see how Mr Johnson was proposing to cross-examine Mr Lucas-Smith. Your Honour pointed out that: It is rather obvious to me now that there are some serious areas of discrepancies that exist between the evidence that Mr Lucas-Smith has given and the evidence that perhaps will be called from other witnesses, and witnesses who are employees of the ACT Government. In response, Mr Johnson confirmed that he was acting for the ACT and there was only one client. We are not acting for individual witnesses; we are acting for the Territory. Your Honour went on to refer to the fact that the issue of representation was raised at the very first directions hearing and asked Mr Johnson whether he perceived a conflict. Mr Johnson again confirmed that he was acting for the ACT and that there are employees of the Territory who will give evidence, and we will seek to defend the interests of those individual witnesses as they come forward. If there are areas of conflict and of significant conflict then obviously we will have to give consideration as to whether that poses a difficulty at some stage. Mr Johnson later indicated that he would take on board what Your Honour said and would seek some instructions. Your Honour said: I simply raise it because I am concerned that witnesses such as Mr Lucas-Smith’s interests are protected, as I say, and indeed the interests of other employees of the Government. But I will leave it with you, Mr Johnson. I can only do so much and I can only raise my concern again on the matter[29].
29. We made submissions in support of Your Honour’s remarks and in particular, made it clear that for someone in Mr Lucas-Smith’s position, who has been an important witness, and there will be some others to come, I am not Mr Lucas-Smith’s counsel, for example, for the purpose of cross-examining a witness like Mr Cooper. So I share Your Worship’s concerns that there are several witnesses, including this current witness, who are entitled to have their interests protected. After a short adjournment, Your Honour granted Mr Johnson’s request that the further hearing be adjourned until the following Monday so that he could obtain further instructions[30]. On that following Monday, Mr Johnson again confirmed that: the legal representatives for the ACT continued to appear for the ACT only; but there is no application made on behalf of an individual. He went on to explain that there had been in place for some time an arrangement between the Legal Aid Commission and the Department of Justice and Community Services whereby independent legal advice would be available to ACT employees. Mr Johnson was unable to indicate at that time whether that would translate into any application for independent representation. Mr Johnson confirmed that he had spoken to Mr Lucas-Smith and it was Mr Johnson’s understanding that he did not make any application to Your Honour for any separate legal representation for himself. We reiterated our concerns in response to the submissions from Mr Johnson[31].
30. The hearings then proceeded for several days, during which Mr Lucas-Smith concluded his evidence and each of Mr Castle and Mr Bennett also commenced and concluded their evidence. However, at the end of the day on 4 March 2004, during the examination of Mr Keady, Your Honour indicated that circumstances have come to light which necessitated the inquiry being adjourned for some extra days and Your Honour adjourned until 10 March. Upon resuming on 10 March, Mr Philip Walker sought leave under s42 of the Act to appear on behalf of Mr Lucas-Smith and sought a further adjournment until 16 March. Mr Walker also indicated that Mr Whybrow would be making a similar application in relation to Mr Castle, which he duly did on 16 March. Your Honour granted leave to Mr Walker and Mr Whybrow[32].
31. The second phase of the evidence in the Inquest then proceeded uninterrupted until 25 March 2003 when Mr Johnson informed Your Honour that Mr Graham had indicated that it was his desire to make an application to have his own legal representation and that Mr Johnson had been instructed that the next two witnesses, Mr McRae and Mr Ingram would be making a similar application. This had been raised with us outside court that morning. We indicated to Your Honour that it was unfortunate that the situation had occurred again and that: We would submit that it would be appropriate, as it were, for as far as can be seen, this to be the last occasion on which such a situation arises. As Your Worship observed, we have been concerned about the potential of this, certainly since counsel has been involved in this case[33]. Your Honour also expressed concern: I am concerned and I am rather displeased that again the progress of this inquiry has to be disrupted due to something which from the start…has been, at least to me and certainly to counsel assisting very blatantly obvious, and that is the need for some witnesses who were to be called and who are to be called before this inquiry to be… separately represented[34]. Your Honour ultimately agreed to grant the adjournment to allow Mr Graham, Mr McRae and Mr Ingram to be represented and cautioned that any other person who considered they may need independent representation, take the opportunity of the adjournment to make the necessary arrangements[35]. Your Honour adjourned the further hearing of the Inquest until 5 April and also allowed additional time to for the newly represented parties to prepare over the Easter break. There were numerous later applications for leave to appear on behalf of witnesses, but none of these resulted in further delays in the evidence.
32. On 24 April 2004 we indicated to Your Honour and to counsel representing parties in the Inquest that we had reviewed the witness list and divided the witness list into those who were still to be called to give evidence and other witnesses on the list marked MA (for make available) who were witnesses that we considered did not need to be called over and above their statements or any other material that they might have provided. We indicated that the procedure we intended to adopt was that, unless any counsel wanted any of the make available witnesses called, we would not call them, but their statements or other material in the brief would go in as though they had been called. We emphasised that we intended that the evidence of those witnesses be treated by Your Honour as though the witnesses had been called and sworn as to the truth of their statements. We requested that represented parties read some distance ahead so they could give us notice as to who amongst the make available witnesses they might want to ask questions of[36]. No request was later made of us on behalf of any party that any of the make available witnesses be called for cross-examination. In the circumstances, Your Honour is entitled to rely on the evidence of each of the witnesses marked MA in the list of witnesses circulated to Your Honour and the represented parties on 23 April 2004, as if each of them was called and sworn as to the truth of their statements and other material provided by them in the Inquest.
33. Following the adjournments in late March and early April 2004, the evidence proceeded essentially uninterrupted until 4 June 2004, after which there was a delay of some four weeks to allow parties sufficient time to consider the reports of Mr Roche and Mr Leonard which had not then been completed in the time originally anticipated. Your Honour directed that if there was any witness or other evidence that any counsel wished to be called, then they should so indicate to us by 16 July and otherwise adjourned the hearing of evidence until 9 August[37]. However, on that date, an application was foreshadowed for access to documents. Your Honour heard that application on 25 August and delivered your ruling the following day. That issue subsequently became the subject of the application and judgment by Whitlam J discussed below. The evidence of Mr Leonard proceeded on 26 August, followed by the further evidence in chief of Mr Cheney which concluded on 27 August. The cross examination of Mr Cheney was delayed until 15 September and Mr Cheney’s evidence concluded on 21 September when the hearing of further evidence was adjourned until 5 October, when it was anticipated at that the evidence in the Inquest would conclude with the expert evidence of Mr Roche and Mr Nicholson and, possibly, the recall of Mr Lucas-Smith and Mr Castle.
34. At the commencement of the evidence on 5 October 2004, we indicated to Your Honour that, while we had originally anticipated that Mr Lucas-Smith would be recalled, we had reconsidered our position and it was no longer our view that he needed to be recalled by us. Counsel for Mr Lucas-Smith had indicated to us by that time that he may wish Mr Lucas-Smith recalled and we indicated that we would facilitate that. There was also, at that time, some uncertainty about the recall of Mr Castle[38]. The evidence of Mr Roche commenced that day and continued until the end of 8 October 2004, when Mr Philip Walker’s cross-examination of Mr Roche was still part heard. However, on the morning of 11 October 2004, application was made to Your Honour to disqualify yourself on the grounds of apprehended bias, which matter was later the subject of the hearing before the Court of Appeal as also discussed below. This application ultimately led to an interruption to the completion of the evidence for over 12 months, until 17 October 2005. Mr Roche’s evidence continued that day and the next. There was then a delay of a week to accommodate the availability of Mr Nicholson, whose evidence occupied 24 and 25 October 2005. Before the conclusion of Mr Nicholson’s evidence, we had confirmed that we were not proposing to recall Mr Castle and Mr Whybrow and Philip Walker (respectively) notified us that they did not require the recall of Mr Castle and Mr Lucas-Smith. Accordingly, Mr Nicholson was the last witness called in the Inquest.
35. In the second phase of the evidence, a large number of witnesses were called and it is appropriate to deal with the relevant biographical details of some of them individually. In several cases, the personal qualifications and experience of the individual witness were relevant to the issues raised by their evidence and generally.
36. Mr Lucas-Smith has been the Chief Fire Control Officer (“CFCO”) in the ACT since 1986 and held that position at the time of the fires[39]. Since its formation in 1995 and at the time of the fires, Mr Lucas-Smith has also held the position of Director of ACT Bushfire and Emergency Services[40]. Mr Lucas-Smith agreed that he was the person most experienced in bushfire fighting of all the personnel at that ESB[41]. Mr Lucas-Smith’s professional career had been in firefighting. Between 1971 and 1987 he was employed with the NSW National Parks & Wildlife Service in fire management roles. Since 1971, according to his CV[42], he had been the incident controller or part of the incident management team of 10 major bushfire events and for more than 4,000 medium and minor bushfire and other emergency service events. Among other honours, Mr Lucas-Smith is the holder of the Australian Fire Service Medal (AFSM) for meritorious and distinguished service to bushfire management. Mr Lucas-Smith’s knowledge and experience in bushfire fighting and management is not in issue.
37. Mr Castle was, at all relevant times, the Executive Director of ESB – a position that was not operational[43]. By the time he gave evidence he no longer held that position and was then Executive Director of the Emergency Management Unit[44]. Mr Castle’s background was in the Australian military, including service in Vietnam ultimately rising to the rank of Lieutenant Colonel. He holds a degree in economics from ANU and a degree from the US in Personnel Management. He has lectured in managerial economics at the RMC Duntroon. During his military service he was involved in providing support to emergency operations including fire and flood[45]. As to the experience in relation to the fires, that was in non fire-fighting roles[46].
38. In 1990, Mr Castle joined the ACT Public Service and became involved in aspects of emergency management. In his statement to the Inquest, Mr Castle described his role as ESB Executive Director of both ESB and Emergency Management as being one where he is responsible for ensuring that there are effective plans and arrangements in place for the prevention of, preparedness for, response to, and recovery from emergencies. Mr Castle was also the single point of contact for requesting Commonwealth assistance[47]. Mr Castle was also a director of the Australian Fire Authorities Council, the ACT and South East NSW Aero Medical Service Ltd and the South Care Helicopter Fund[48]. In his evidence, Mr Castle said that in the 9 years of running the ESB there had been some 2000-odd bushfire events and he estimates something like 175,000 different incidents. Mr Castle said he had done some Incident Control System training after he joined ESB in 1994 although he does not have any formal accreditation[49]. In his statement, Mr Castle explained that the ESB is a cost centre within the Department of Justice & Community Safety (DJACS) Portfolio and I report to Mr Tim Keady, the Chief Executive of DJACS. The Bureau has a budget of approximately $35 million. About 450 full time members, and about 850 volunteers staff it[50].
39. At the time of the fires Mr McRae was the acting manager of the Risk Management Unit at ESB. At the time he gave his evidence, he had been confirmed in that position. As Mr McRae explained it, his role was to provide risk-based services to agencies within the ESB as required[51]. In his evidence, Mr McRae said he was a trained ecologist and by reference to his written CV, Mr McRae outlined that during the early 1980s he worked for the Blue Mountains National Parks and in that capacity he had some role in relation to bushfire suppression. That involved a fire fighter and crew leader of remote area teams. He said he was involved in about six significant fires. He worked for the Victorian Department of Conservation, Forests & Lands on Alpine Management in the later 1980s. That did not involve any bushfire fighting role. In July 1989, Mr McRae began working for the ACT government and in the early stages was the fire management planning officer for the ACT Bushfire Service. That apparently involved a wide range of support roles including weather, mapping and fire behaviour prediction services. Mr McRae gave evidence that once the ICS system began to be used in the ACT he became the core planning officer and that occurred probably in the early 1990s. That role continued up and beyond the January 2003 fires[52]. As best we can tell from his evidence, that role did not involve any direct firefighting activities. Mr McRae said he no direct role in community education but would sometimes provide some assistance and support in that area[53].
40. Mr Graham was, at all relevant times, the Operations Manager with the ACT Bushfire and Emergency Services section of the ESB and as such was involved in some critical decision-making, both in connection with firefighting strategies and resources. Mr Graham had held that position since July 1997 (then with the title Manager) and from that point on had a role as one of the duty co-ordinators or duty officers at ESB and was the designated Operations Manager in the Service Management Team[54]. The documents produced including Mr Graham’s CV and written statement indicated that he had spent 21 years in the Royal Australian Navy. He was an aviation qualified sailor and he had a key responsibility [for] firefighting and aircraft crash rescue. Upon discharge from the navy in 1993, Mr Graham was a warrant officer and had spent most of 21 year naval career in catering. Although everyone aboard ship had a firefighting responsibility, Mr Graham’s actual experience of such incidents was limited to two or three incidents. There was also the occasional bush or grass fire near shore facilities. Over the entire period of his naval service, there may have been no more than half a dozen of those[55]. In the last three or four years of his naval service, Mr Graham joined the ACT Emergency Services as a volunteer and received bushfire training. His CV indicates that he actually joined in February 1989. In January 1994, Mr Graham, in his capacity as a volunteer, attend the NSW fires and travelled up there in the portable communications vehicle, spending some 3 days in the area[56].
41. Mr Graham has been involved in training for AIIMS-ICS and is accredited as an instructor, achieving that in 1994/1995. Mr Graham has had some experience as an incident controller having been the deputy IC on the fire-line at the 1998 Dingi Dingi Ridge fire supporting Mr Rob Hunt from the NPWS. In December 1998, Mr Graham was the IC in a 4 to 5 hectare grass fire along Canberra Avenue. He was similarly involved in an incident in 2000. In December 2001 he was an operations officer at a 7 to 10 hectare fire at Pialligo. Mr Graham has never actually fought a fire by holding a hose or rake hoe and has no training in fire behaviour. He accepted in his evidence that he had never been involved in anything like the magnitude of the January 2003 fires[57]. Mr Lucas-Smith described Mr Graham’s role as a controller of resources[58].
42. As will become apparent later in these submissions, there is a significant issue about Mr Graham’s lack of qualification and experience for the role he was endeavouring to fulfil, particularly at the time of the initial response to the fires.
43. At the time of the fires and since October 2000, Mr Bennett was the Commissioner of the ACT Fire Brigade, being the ACT’s urban firefighting force. However, he has not held that position since February 2003 due to ill health. He later became attached to the ACT’s Bushfire Recovery Task Force. Mr Bennett had been with the ACT Fire Brigade since he joined in 1976 as a recruit fire fighter. In 1986 he was promoted to Station Officer after which he performed a number of roles until he was appointed to superintendent in 1994[59]. Mr Bennett had been involved in other kinds of emergencies including the Thredbo disaster. He had not been an Incident Controller for any incident that required a multi-jurisdictional response. Also in 1994, Mr Bennett led a Task Force to the Sydney wildfire and was involved in firefighting along St Ives Road. Apart from that incident, he had no exposure to anything of the magnitude of the January 2003 fires and most of his earlier experiences of non-urban fires had been in grassland areas. His only experience of wildfire in pine plantations had come from the fires of Christmas 2001[60].
44. Mr Bartlett was at the time of the fires the Director of ACT Forests[61] - a position he had held since October 1999. He holds the degrees of Bachelor of Forest Science from Melbourne University and a Masters degree in Science (Forestry) from Oxford. Mr Bartlett has some 25 years experience in forest management and fire suppression. Mr Bartlett’s considerable relevant experience is set out in his statement and was supplemented by his evidence[62]. In summary, it is as follows:
a. two years as Fire Protection Officer in East Gippsland;
b. two years managing the Forest and Fire Program in North East Victoria;
c. Divisional Commander role in fires leading up to and including Ash Wednesday in 1983;
d. several other large fire events after that event, including the wildfires in the Byadbo wilderness area in 1988;
e. compiled a fire research report published by the Victorian Department of Conservation and Natural Resources;
f. leader of 120 Victorian fire fighters to the Blue Mountains in NSW in 1994;
g. in 1998, Incident Controller at the Caledonia wildfires in alpine north-east Victoria.
45. In addition Mr Bartlett has attended a large number of formal fire training programs. He has various accreditations, including as Incident Controller for Type 3 fires and a Statement of Attainment in Competency 6.02 Major Operations Management under AFAC’s National Fire Training Framework. He is nationally recognised to fulfil the role of Incident Controller under the AIIMS ICS at major wildfires.
46. Mr Ingram was the logistics co-ordinator with the ACT Bushfire and Emergency Services[63]. Mr Ingram has a Diploma of Education in Adult Education and has attended numerous courses in logistics management. He has assisted in logistics in major operations including the Canberra Hospital implosion incident, the Thredbo landslide and the 2001 fires in Canberra. He assisted in a similar capacity with the Canberra aspect of the 2000 Olympic Games. As a public servant he joined the ACT ESB in 1995 as the operational support officer. In 1997 he became the logistics co-ordinator for both the Bushfire Service and Emergency Service. His role includes ensuring equipment is available and that the volunteer side of the service has the best possible equipment to deal with the incidents they have contend with[64].
47. Hon. John Stanhope MLA: Mr Stanhope was elected to the ACT Parliament in 1998[65] and has been the Chief Minister in the ACT since November 2001 and, obviously, occupied that office at the time of the January 2003 fires[66]. Mr Stanhope also holds the office of Attorney-General. Mr Stanhope was on leave between 8 January 2003 and 13 January 2003 and Mr Quinlan was acting in the role of Chief Minister[67]. Mr Bill Wood, the Minister for Police and Emergency Services was on leave for a short time (including on 17 and 18 January) and Mr Stanhope acted in that position while Mr Wood was on leave[68]. From time to time Mr Stanhope was briefed on the fires including the Cabinet briefing on Thursday 16 January 2003[69].
48. Tim Keady: Mr Keady had been a career public servant in NSW in the Attorney-General’s Department and then as Director-General of the NSW Ministry of Police and Emergency Services. He moved to the ACT in 1996 and took over what was then Attorney-General’s Department. In that same year the ESB moved from the Department of Urban Services to the Attorney-General’s Department. At the time of the fires, Mr Keady was the Chief Executive Officer for the Department of Justice & Community Safety. The relevant activity of Mr Keady examined during the evidence was his involvement at ESB during the fires. In his capacity as CEO of the Department, Mr Keady attended planning meetings at the ESB. He described his role at those meetings as a support role[70] and not as a primary decision-maker.
49. Robert Tonkin: In January 2003, Mr Tonkin was the chief executive of the ACT Chief Minister’s Department and had held that position for almost three years[71]. Mr Tonkin’s first relevant connection with the bushfires was on Sunday 12 January 2003, when he contacted the Chief Minister, which led to a briefing being arranged for the following day, 13 January 2003[72]. Mr Tonkin was also present at the briefing of Cabinet on 16 January 2003[73] and at the ESB on the morning of 18 January 2003, where he participated in a meeting to discuss community recovery[74].
50. Natalie Larkins: Ms Larkins is a journalist employed by the ABC and was a Canberra resident, living in the suburb of Rivett. Her home was destroyed by the fire on 18 January 2003. Ms Larkins was responsible for the weekend news bulletins on ABC radio over the weekend commencing 17 January 2003, and was engaged in attempting arrange interviews with ESB personnel.[75]
51. Marika Harvey: Ms Harvey had worked in the public relations area of the ACT Government for about six years and was predominantly involved in media liaison. At relevant times, Ms Harvey was the manager of public relations within the Chief Minister’s Department[76]. During the fires, one of her roles was to assist with media aspects of the fires and she was reporting primarily to Mr Castle and Mr Lucas-Smith[77].
52. Amy Lowe: Ms Lowe holds a Bachelor of Communications specialising in community relations. She was Community Education and Public Relations Co-Ordinator at ESB. She was employed in that position from 19 December 2001 until 30 October 2003 on a series of short term contracts. The roles she had been fulfilling before the fires ranged from assisting with the production of a firefighters calendar and with a fashion parade for the Ambulance Service. Media liaison had been a relatively small part of her role.[78]
53. Janelle Wheatley: Ms Wheatley was employed by the Department of Education, Youth & Family Services as executive officer. Her department was required to provide community recovery services to affected persons in the event of emergency. She became aware of briefings that were being given at ESB during the week leading up to 18 January 2003[79]. She attended the ESB planning meeting in the evening of 17 January 2003 and other meetings later that evening and the following morning, where she took notes of the matters discussed. She also assisted in the process of contacting rural lessees on 17 and 18 January[80].
54. Kate Keane: Ms Keane was the Emergency Management Support Officer at ESB. She liaised with members of the Emergency Management Committee and assisted with the taking notes and preparing minutes of ESB planning meetings. [81]
55. Jillian Ferry: Ms Ferry was the administrative liaison officer for the bushfire emergency services branch at ESB. She assisted Peter Lucas-Smith and involved herself with various administrative duties, including assisting with taking notes and preparing minutes of ESB planning meetings.[82]
56. Nick Gellie: Mr Gellie is a landscape ecologist and holds tertiary qualifications including Bachelor of Science in Forestry. In 1983 he was appointed as the fire management officer for the NSW National Parks & Wildlife Service in the Blue Mountains National Park. In that position, he developed systems of fire appraisal and fire management. In 1995 he moved to Queanbeyan and became a manager of the Natural Heritage Unit. He retired in 2000. On 16 January 2003, he went to ESB as a volunteer and undertook the role of aiding in the prediction of fire behaviour.[83]
57. Nick Lhuede: Mr Lhuede is a fire management officer with Environment ACT having been appointed in September 2002. Prior to that he had been employed with NSW State Forests as a harvest planning manager and was involved in fire suppression at various levels. He had some incident control training and some RAFT training. As a fire manager in the ACT, Mr Lhuede became a member of the Land Managers Fire Working Group. [84]
58. Hilton Taylor: Since 2001 Hilton Taylor has been the Manager of Strategic Planning and Harvesting with ACT Forests. He holds an Associate Diploma of Applied Science in Forestry from Queensland and Bachelor of Science from the ANU. He has international experience and also holds some firefighting qualifications including ICS training and accreditation as a Planning Officer level 2. He has also completed formal study in fire behaviour, fire management and fire weather.[85]
59. Robert Gore: Mr Gore is a public servant in Commonwealth Department of Defence[86]. He joined the SES in 1986 and then joined Jerrabomberra Volunteer Brigade in 1994. At the time of making his statement he was in his third year as Captain of that brigade. On 17 January 2003 he was the overnight duty coordinator at Comcen. [87]
60. Dave Jamieson: Mr Jamieson was employed by ACT Forests as the Manager of Environment & Recreation. He retired on 30 May 2004. Until mid-2002 he had been the Bushfire Captain with the Forests Brigade[88]. On Saturday 11 January 2003, he was requested to work the night shift in the control room at ESB. That request came from Tony Graham[89]. He worked on that night shift on 11, 12 and 13 January 2003 and on 15 January 2003 took over responsibility for plant co-ordination and became the ACT Forests representative. Some time in the afternoon on 18 January 2003 he moved into the Operations Officer position as the State of Emergency was declared[90].
61. Arthur Sayer: At the time of the fires Mr Sayer was a District Works Officer with Environment ACT, Parks and Conservation[91]. Mr Sayer had approximately 37 years of firefighting experience, 24 as a government employee. Until July 2003, when he resigned, Mr Sayer was a deputy CFCO[92].
62. Tony Corrigan: Mr Corrigan is a rural contractor. For two years he was a wildlife ecologist with ACT Parks & Conservation and then in 2000 became the Manager of ACT Parks & Conservation. From December 2002 onwards he ceased to be in that position and was an unattached officer at the time of the fires[93]. In the 1980s and 1990s he had significant bushfire experience, usually as a team leader. That included a number of remote area fires. In December 2001 he was the Planning Officer for the Stromlo fire and this was the first type 3 incident where he had been involved in an IMT in the field[94]. On 12 January 2003 he was the ACT liaison officer at Yarrowlumla and his impression was that he was to represent the interests of the ACT government in both an administrative and operational sense[95].
63. Odile Arman: At the time of giving her evidence, Ms Arman was attached to the ACT Chief Minister’s Office as a liaison officer for Environment ACT. Her substantive position was District Conservation Officer for Environment ACT[96]. She had been a ranger at Namadgi National Park from 1984 until 1995 and attended remote fires as a crew member. Her first role in a command position would have been approximately 1994. Most of her fire experience had been in small urban interface grassland, woodland and open forest fire. She had attended very few forest fire incidents from 1995 in a command position, because there had not been many such incidents[97]. She was the incident controller at Bruce Ridge during the 2001 fires[98]. She was in command in the initial response to the Bendora fire on the night of 8 January 2003.
64. Neil Cooper: At the time of the fires, Mr Cooper was employed by ACT Forests as manager of debris removal and fire control. He was formerly manager of plantation management[99]. He was responsible for ACT forest fire management and had been in that position since 2001. He holds a Bachelor of Science from the Australian National University (1982). He has filled a senior role as a fire controller for some 15 years and had undertaken the ICS training in 1991 and in 2002. He is an accredited trainer[100].
65. Dennis Gray: Mr Gray was at the time of the fires employed by ACT Parks & Conservation as a depot foreman. He had been with that service for 25 years and has had 22 years as an active fire fighter. He has training in incident control systems and has been active within the Parks Brigade. He has experience as an incident controller over the previous 3 years since he was nominated as deputy captain[101]. On 8 January 2003, Mr Gray was deployed to attend the Stockyard Spur fire.
66. Rick Hayes: Mr Hayes had worked for the ACT Department of Urban Services until about 1980. He became a member of the Temora Brigade and then in 1987 resumed employment with the Department of Urban Services and joined the O’Connor Brigade. In the early 1990s he was employed with the Cityscape and the Cityscape/CUPP employees formed into one brigade. He has had experience in a number of fires and in 2001 was a sector leader at the Stromlo fire. He had done ICS training in 1998[102]. Mr Hayes was the incident controller at the Bendora fire on 9 January 2003.
67. David Prince: At the time of giving evidence, Mr Prince was the Acting Fire Commissioner at the ACT Fire Brigade. In January 2003, he was the Acting Superintendent and Deputy Director Communications Upgrade Project for the ESB[103]. Mr Prince attended the briefing by Mr Lucas-Smith on 16 January 2003 and was closely involved in the preparations by the ACT Fire Brigade in the days leading up to 18 January and in meetings to discuss community warnings and preparedness on 17 and 18 January.
68. Peter Newham: Mr Newham was at all relevant times either an Acting Superintendent or Superintendent with the ACT Fire Brigade. He has been a fire-fighter since 1978 and has various ranks including station officer and manager. He has various qualifications involving command and control development course in various Australian states. He was a commander of an ACT taskforce at the 1994 Sydney fires and also undertook a command role at the 1997 Thredbo landslide and the 1999 Sydney hail storm incident[104]. Mr Newham attended the briefing by Mr Lucas-Smith on 16 January 2003 and was involved in directing the preparations by the ACT Fire Brigade between that date and 18 January.
69. Michael Collins: Mr Collins is a Fire Brigade Officer in the ACT Fire Brigade having joined in 1988. After joining the Fire Brigade, he was an operational fire fighter until 1997 and from then he was assigned to the Fire Safety section of the Brigade which was concerned with prevention[105]. Mr Collins also attended the briefing by Mr Lucas-Smith on 16 January 2003 and was closely involved in the work of the ACT Fire Brigade IMT over the following 3 days.
70. Peter Cartwright: At the time of the fires Mr Cartwright was a relieving district officer in the ACT Fire Brigade[106]. On 16 January 2003, Mr Cartwright attended a briefing by Mr Lucas-Smith for Fire Brigade officers at ESB at Curtin and made notes of what transpired at that meeting.
71. Shawn McIntyre: Mr McIntyre is a station officer with the ACT Fire Brigade having been appointed to that position in August 2002. He has been a fire-fighter for 14 years. At the time of the fires he was a relieving officer and attached to the Chisholm fire station. He has had some experience with fighting rural fires and attended the Sydney fires in 1994 and was involved in the Jannali and Como fires. He had also been involved in some small events in the rural area around Canberra. [107]
72. David Dutton: Mr Dutton is the Operations Manager for the ACT Ambulance Service[108]. In that role, Mr Dutton attended meetings at ESB including the briefing by Mr Lucas-Smith on 16 January and subsequent ESB planning meetings and prepared memoranda of information obtained at those meetings that were circulated to ambulance officers.
73. Mr Jeffery was a foundation member of the Tharwa Fire Brigade in the 1950s which later became the Southern Districts Brigade. Mr Jeffery has been involved in firefighting since he was very young. In 1994 he was awarded the Australian Fire Service Medal. At the time of giving evidence he still held the position of Brigade Captain. He has fought many fires including campaign fires in both the ACT and NSW many of which have threatened rural residences. He has completed several training courses including in ICS[109]. Mr Jeffrey was a member of the Bush Fire Council for 14 years, including as its chairman from 1978 to 1991 and during that period was closely involved with the organisation and management of the bushfire suppression capability in the ACT, outside the urban area[110]
74. Given the involvement of New South Wales as the State in which several fires started on 8 January 2003, the largest of which having the most dramatic effect on the ACT, a number of witnesses from their agencies were called.
75. Phil Koperberg: Mr Koperberg is the Commissioner of the NSW Rural Fire Service and his fire experience is extensive both operationally and administratively. He commenced firefighting activities in 1967 and became Deputy Captain and then Captain of the brigade he joined. In 1970 he became the Fire Control Officer for the Blue Mountains and in 1972 became the first Chairman of the Fire Control Officers Association. In 1985 he became the Executive Officer of the Bushfire Branch of the Office of the Minister for Police and Emergency Services which led to his appointment to his present position[111]. He was in contact with Mr Arthur by telephone on a number of occasions in the period 8 to 18 January 2003, and attended meetings at the Queanbeyan incident control centre on 15 January with members of the IMT responsible for the McIntyre’s Hut fire and with Mr Lucas-Smith.
76. Bruce Arthur: Mr Arthur joined the Army as a field engineer in 1965. He saw service in Vietnam and was decorated for that service. In 1973 he re-trained as an Army firefighter, retiring from the Army in 2002. He spent a year working for Chubb and then joined the NSW RFS. At the time of the January 2003 fires, he was District Fire Control Officer for the Yarrowlumla and Queanbeyan rural fire district. Mr Arthur has attended a number of wildfire incidents and has been the incident controller at 2 or 3 campaign fires [112]. Mr Arthur was the day shift incident controller responsible for the McIntyre’s Hut fire from 9 to 18 January 2003.
77. Julie Crawford: In January 2003, Julie Crawford was the area manager for the Queanbeyan area for the NSW National Parks & Wildlife Service. Her fire experience began in 1979. She had been in the National Parks & Wildlife Service for the previous six years and has spent her firefighting activity as part of Incident Management Teams, although she has had some further recent fire ground experience[113]. Ms Crawford was the incident controller responsible for the McIntyre’s Hut fire on the from the time of its ignition on 8 January 2003 until the following day and thereafter fulfilled other operational IMT roles in respect of that fire.
78. Robert Hunt: Mr Hunt is Ranger with NSW National Parks & Wildlife Service. He is responsible for the Brindabella National Park and Bimberi Nature Reserve. His fire involvement began in 1989 as a student at Charles Sturt University some time after which he joined up as a field officer in Kosciusko, then ranger in Narrabri and ranger in the Queanbeyan area for just less than 10 years[114]. Mr Hunt was involved in the initial assessment of the McIntyre’s Hut fire on 8 January 2003 and fulfilled other roles in respect of that fire over subsequent days.
79. Kevin Cooper: Mr Cooper has been a volunteer member of the NSW Rural Fire Service since August 1987. Mr Cooper has extensive experience in emergency response as a result of his position as the coordinator of emergency response with the NSW Department of Agriculture[115]. On 15 January 2003, Mr Cooper was asked to be the Task Force Commander of the NSW RFS Task Force that was going to Canberra. The Task Force went to the ACT on 16 January 2003. Mr Cooper’s role was to liaise with the ACT and also to ensure that the well being of members of the Task Force was being attended to[116]. During that period, he spent time at the ESB in Curtin and had discussions there with both Mr Graham and Mr McRae.
80. Peter Smith: Mr Smith is the captain of the Brindabella Brigade and has been with that brigade for 30 years. He has been Captain of that brigade since 1990 and qualified to Group Officer level[117]. He was involved in the response to the McIntyre’s Hut fire and also in travelling to the site of the area of the point of ignition of the McIntyre’s Hut fire to assist in assessing its accessibility to fire tankers.
81. John Murray: In January 2003, Mr Murray was the Chief Police Officer for the ACT and a Deputy Commissioner in the AFP. His career commenced in 1963 in South Australia and he was a member of the South Australian Police Force at various ranks until 1997. From 1997 until 2000, Mr Murray was an associate professor at Charles Sturt University and in September 2000 he became Chief Police Officer for the ACT. He held that position until February 2004. [118]
82. Mandy Newton: At all relevant times, Commander Newton was Commander of Operations in ACT Policing. She has been a member of the Australian Federal Police since 1983 apart from the period between 1995 and 2002. During that time she worked for ActewAGL and also for a time with the Australian Taxation Office.[119]
83. Steven Kirby: Mr Kirby is a member of the AFP holding the rank of Sergeant. During the week prior to 18 January 2003, Sergeants Kirby had been the acting officer in charge of the specialist response and security team. On 16 January 2003, he was appointed by Commander Newton as the ACT policing liaison officer with ESB. [120] Mr Kirby had meetings with Mr Prince and others on 17 and 18 January where he was given information about the threat posed by the fires.
84. Jason Byrnes: In the period prior to 18 January 2003 Mr Byrnes was the acting officer in charge of the Tuggeranong Police Station[121]. In that capacity, he had a telephone conversation with Mr Graham on 15 January 2003. On 18 January, Mr Byrnes was in a police liaison role at ESB.
85. Rob Webb: Mr Webb is the senior severe weather meteorologist with the Bureau in Sydney. Within the NSW region he heads a specialist section and has responsibility for severe thunderstorm warning services and bushfire warning services in NSW. He liaises with the Canberra meteorological office. During the fires he was involved in discussion about weather patterns and the provision of briefings to senior personnel within the NSW Rural Fire Service. [122]
86. Ian Mason: Mr Mason was acting as the officer in charge of the Canberra meteorological office from August 2002 and was also acting in that position between 8 and 18 January 2003. At the request of Mr McRae, Mr Mason attended the morning planning meetings at the ESB on 15 to 17 January (inclusive) to provide a briefing on weather conditions[123].
87. Clem Davis: Mr Davis has been a meteorologist working in Canberra for 31 years. Mr Davis provided the briefing on weather conditions to the planning meeting on the morning of 18 January 2003.[124]
88. Kenneth Tycehurst: Mr Tycehurst is an electrical engineer and owns the company Kattron which specialises in lightning detection systems[125]. He provided evidence to the inquest on the location of lighting strikes in the area of the point of origin of each of the 4 fires.
89. Phil Cheney: At the time of giving evidence, Mr Cheney was a senior principal research scientist with the CSIRO concerning bushfire behaviour and management. Mr Cheney has a number of relevant tertiary qualifications which include Diploma of Forestry from the Australian Forestry School; Bachelor of Science in Forestry from Melbourne University. During the first half of the 1970s, Mr Cheney lectured at the ANU on subjects associated with fires and fire suppression[126]. He has held various positions over the years in forestry with the Forest Research Institute, which included developing prescribed burning guides and the application of aerial prescribed burning for fuel reduction in mountains and forests. Mr Cheney has led research projects matters such as the use of large air tankers, the behaviour of high intensity fires, effectiveness of retardants, understanding the spread of bushfires in the natural environment and the development of models to predict fire behaviour. Mr Cheney worked with Mr Alan McArthur in the development of what had become known as the McArthur Index[127]. Mr Cheney has been involved in some 54 consultancies as a fire behaviour expert and written or co-written a substantial number of publications. Mr Cheney also has some experience as an operational fire fighter in the field, although not since 1972. He was also involved in fire suppression and control on experimental fires[128]. He initiated and led the Project Vesta experiments on fire spread in Western Australia which commenced in 1996[129]. In our submission, on the evidence, it is correct to describe Mr Cheney as Australia’s pre-eminent expert on fire behaviour and a person who also has considerable expertise, both practical and research based, on fire suppression and management.
90. Trevor Roche: Mr Roche joined the Victorian CFA as a volunteer in 1963. He later joined the staff of the CFA and attended numerous large bushfires as a fire fighter and commanding officer. He became an Assistant Regional Officer in the CFA in 1969 and became a Regional Officer in charge of the CFA’s northern Victorian region in 1978. In 1990 he was appointed Assistant Chief Officer with responsibility for command and control and business management across three regions. He was later promoted to the position of Deputy Chief Officer and in 1993 to the position of Deputy Chief Officer with responsibility for CFA operations throughout the entire State. In 1995, Mr Roche was appointed to the position of Chief Officer - a position he held until his retirement on 26 June 2002. During his time with the CFA, Mr Roche attended numerous courses on many aspects of fire and other emergency management and activity. Since leaving the CFA he has been involved with Emergency Management Australia dealing with multi-jurisdictional emergency management and preparedness[130].
91. John Nicholson: At the time of giving evidence and since March 1999, Mr Nicholson was the principal of his own consultancy, operating under the name Community Safety Service Pty Ltd. Between 1994 and 1999, Mr Nicholson was the Director Risk Management with the CFA and between 1967 to 1994 he was employed as an operational officer with the CFA, rising to Deputy Chief Officer in 1991[131]. Relevant aspects of Mr Nicholson’s CFA career including his various operational roles and firefighting experience is set out in the first two pages of his report[132].
92. Howard McBeth: During the period 1981 to 1986, Mr McBeth was in charge of the fire management department of the Department of Environment and Planning with the NPWS of South Australia which managed fire for all government managed lands. Between 1986 and 1994 he was the Deputy Chief Officer with the South Australian Country Fire Service and its Chief Operations Officer. He was effectively in control of rural fires in that State. Since 1994, Mr McBeth has been a consultant on fire issues and given evidence as an expert witness[133]. Mr McBeth prepared a report dated 29 September 1994 in relation to fuel management in the ACT and the risk of wildfire.
93. Justin Leonard: Mr Leonard holds the degree of Bachelor of Mechanical Manufacturing Engineering Mr Leonard holds the degree of Bachelor of Mechanical Manufacturing Engineering. Mr Leonard is the head the Bushfire Research Team in the Manufacturing and Infrastructure Technology division of the CSIRO. That division supports, among other things, the building industry in Australia with particular reference to the effects of bushfires on structures. Mr Leonard carried out research into the Canberra fires as part of his team’s long history of investigating urban and peri urban impact by significant bushfires in Australia[134].
94. Peter Ellis: Dr Ellis is also a research scientist with the CSIRO, in the Bushfire, Paper and Management Group. His scientific work has been in modelling fire brand and spotting behaviour and also assessing radiant heat[135]. In August 2003, Mr Ellis prepared a report in conjunction with Andrew Sullivan for the ACT Planning and Land Authority which concerned itself with pathways of fire attack on and within the suburbs of Canberra.
95. On 26 August 2004, Your Honour delivered a ruling in relation to the request by certain represented parties for the production of documents affecting the evidence of the witnesses of Mr Cheney and Mr Roche. In view of the fact that the ruling was that you declined to direct that certain documents be produced, proceedings were commenced in the ACT Supreme Court on the following day, when Gray J granted orders to show cause and directed that the orders be served on the ACT Director of Public Prosecutions as contradictor. The proceedings were heard before Whitlam J on 6 and 7 September 2004. His Honour made orders on 10 September 2004 and published his reasons a week later, on 17 September 2004. His Honour held that it had been established that Your Honour had failed to afford procedural fairness to the prosecutors in the matter and were entitled to relief under section 34B of the Supreme Court Act 1933. Orders were made that Your Honour be prohibited from further taking evidence from Messrs Cheney and Roche until particular documents were provided.
96. At the conclusion of the hearing before Whitlam J on 7 September, His Honour indicated that he would be making some orders concerning the production of documents. In anticipation of those orders, on 9 September a letter was sent to the office of the ACT Government Solicitor to inform the parties that documents concerning Mr Cheney over and above Mr Cheney’s original source material would be available for collection and most parties collected those documents on or before 10 September 2004, the date of His Honour’s order, and a week before His Honour published his reasons.
97. The orders having been made by Whitlam J on 10 September, the matter was mentioned before you that day made and Your Honour directed that the matter be mentioned again on Tuesday 14 September 2004 with a view to re-commencing Mr Cheney’s evidence on the following day. The directions hearing was held and the cross examination of Mr Cheney by the various parties commenced the following day.
98. Less than a month after the evidence recommenced following the application before Whitlam J, an application was made by Mr Glissan QC on behalf of various represented parties to Your Honour to proceed no further with the hearing of the Inquest on the basis of apprehended bias. Mr Glissan’s application was supported by counsel on behalf of the ACT. Mr Glissan had not previously taken part in the Inquest, announcing his appearance on that day. The ACT also later retained Mr Tracey QC, to lead the (then) team of three existing counsel led by Mr Johnson, to appear in the hearings before the Court of Appeal. It was obvious that the matter had been under preparation for some considerable time but no notice, apart from a perfunctory phone message on the day of the application, had been given. We continue to assume that that course was taken with a view to gaining some kind of forensic or other advantage from the element of surprise. The immediate consequence was that the application could not proceed because the position of counsel assisting needed to be considered and new counsel briefed for the purpose of the application.
99. On 19 October 2004, Your Honour considered the application and declined to disqualify yourself. Ex parte applications were made the next day to Crispin J who made orders nisi and directed Your Honour to show cause. His Honour also directed that the matter be heard before a Court of Appeal. The applications proceeded over 10 hearing days in February, March and May 2005. The Court delivered its judgment three months later on 5 August 2005. Having ordered that the order nisi be discharged, the hearing of the Inquest resumed at the convenience of all the parties with a directions hearing on the 13 October 2005. The consequence was that a full year was lost as a result of the application and subsequent proceedings. Further, the fact that little or no useful work could be done pending the hearing and determination of the applications, has prolonged the process of submission and report.
100. In the hearing of the applications, the Prosecutors relied on twenty two matters said to be suggestive of bias. They included:
a. The view the scene;
b. The production of notes of the view;
c. The suggestion that Cheney and Roche were independent investigators;
d. The inclusion of Cheney and Roche in the team;
e. Responses to applications for access to documents relating to experts;
f. Notes of conferences in June and July 2003;
g. The role of counsel assisting in preparation of expert reports;
h. The selection of potential witnesses to be interviewed;
i. The rejection of maps;
j. The survey of affected residents;
k. The warning of Ms Harvey;
l. The suggestion that slants had been put on the evidence;
m. The criticism of the cross-examination by Mr Watts;
n. The criticism of Mr Bayliss;
o. The remarks to Mr Walker;
p. The e-mail from counsel assisting;
q. Counsel “struggling” to put a case;
r. The proposal for counsel to assist in writing the final report;
s. The dissemination of copies of submissions by a court officer;
t. The brevity of the decision to refuse the application [to disqualify] and the absence of reasons;
u. The suggestion that the [Coroner] had descended into the arena.
101. In the course of the submissions made to the Court of Appeal, assertions were made that, on occasions, the conduct both of Your Honour and counsel assisting was potentially or actually intentionally misleading and/or disingenuous[136]. Apart from the manner in which the individual issues referred to above were dealt with, the Court concluded that the applications were made prematurely. Their Honours observed that …some of the grounds relied upon plainly provide no basis for any reasonable apprehension of bias, while other provide some possible ground for concern but only if adverse findings as to certain issues are contemplated. Any findings as to some of those issues would clearly be beyond the scope of the jurisdiction conferred by the Coroners Act and the likelihood of adverse findings on others is presently a matter of speculation[137] (emphasis added). The Court went on to hold that they could not be satisfied that even the cumulative weight of the matters raised by the Prosecutors had established the required grounds and, given the manner in which the Court dealt with several of them, that is hardly surprising. Indeed the Court held that even if they had been so satisfied, they would have nonetheless not have made the orders sought since, at the most, all that would have been raised would have been grounds for concern in relation to circumstances that had not arisen and might never arise.
102. It is trite that as time passes between an event such as the January 2003 fires and the conclusion of an investigation into that event, public interest in the outcome of that investigation begins to wane. This problem is exacerbated if, during the period of any delay, there is no evidence being adduced or other developments that help to keep the investigation in the public eye. A long delay in finalising the investigation process will inevitably mean that there is less public interest in the outcome and, accordingly, less public and political will to act upon any findings and recommendations resulting from the investigation process. In this way, a delay of the kind resulting from the applications in this case, can materially diminish or defeat the fundamental purpose of the Coronial investigation process, regardless of the outcome of the application.
103. The substantial interruption to the progress of this Inquest by these proceedings to which we refer, presented by senior counsel briefed only for the purpose of conducting the application, and which were substantially based on grounds which in the opinion of the Court clearly could not establish the required grounds for apprehended bias, should not be permitted to be repeated in other inquests or inquiries except in the most unusual or extreme case. In our submission, this case was not such a situation.
104. In the circumstances, we urge Your Honour to recommend to the Attorney-General that the Act be amended to provide (in effect) that:
a. no application likely to result in a material delay to the commencement or continuation of an inquest or inquiry under that Act can be brought except by leave of the Coroner conducting the inquest or inquiry, or the Supreme Court;
b. such leave will be granted only if the Coroner or the Supreme Court (as the case may be) is satisfied that:
i. the application raises a serious question to be tried; and
ii. deferring the hearing and determination of the application until after the Coroner has served any notices under s55 of the Act and/or delivered findings, will result in real and substantial prejudice to the applicant, which outweighs the prejudice likely to result from a delay of the inquest or inquiry.
105. In view of the fact that the issue of fuel management was raised by the ACT Supreme Court in R v Doogan, in our submission, it is appropriate to identify the context in which we include reference to it in these submissions.
106. Their Honours referred to the issue in the following terms on the question of the jurisdiction of a Coroner in the circumstance now confronting Your Honour and said[138]:
To take but one example, it may be thought that the thickness of the vegetation at the site where the fire commenced had some causal relevance and, if the first respondent came to that view, then she would clearly be entitled to make a finding to that effect. However, that observation may evoke other questions. Why was the vegetation in that state? Was there some failure on the part of a government agency to detect its growth and embark upon fuel reduction measures? If so, was this attributable to lack of resources, public policy related to conservation of the natural environment and/or other considerations? The answers to those questions could, in turn, evoke yet others. How much does the ACT Government spend on the construction of fire breaks and other fuel reduction measures in and around Canberra? Is that amount of money appropriate having regard to the Government’s competing responsibilities such as those relating to the provision of adequate funds for education, public health facilities and law and order? As a matter of public policy, has an appropriate balance been struck between the need to protect housing on the fringes of Canberra and the need to ensure that the surrounding bushland is maintained in its natural state? If not, is that because the legislature has been misled as to the relative importance of wilderness areas?
Even further questions could be asked. Should people have been permitted to build houses in the areas in question? Should the New South Wales Government have taken measures to prevent fires spreading from forest or bushland into the Territory? Should the ACT building code have required houses constructed in those areas to incorporate various features designed to ameliorate the danger posed by potential bushfires? Should fire crews have been deployed in one suburb in preference to another? Did some occupants contribute to the danger and/or the damage by failing to remove flammable materials from their yards?
107. It will be apparent from the conduct of the proceedings that, ultimately, no exhaustive analysis was conducted, presented and cross examined about concerning fuel management. The outline of the evidence and these submissions will not go beyond the first two levels to which the Court referred and which are emphasised above – the fuel loads that were actually in evidence at the time of the commencement of the fires on 8 January 2003 and the fact that several witnesses including experts and personnel from ESB had, putting it broadly, expressed concern that fuel reduction burning had not occurred to the level where a benefit would be obtained in the event of a serious conflagration as occurred on and shortly before 18 January 2003. Such evidence, in our submission, is well within the test of the concept of cause and origin of the fire to which the Court referred in its discussion of s18(1) of the Act.
108. Further, findings about those matters will provide a proper jurisdictional foundation for any comments and recommendations Your Honour is minded to make on fuel management practices in place at the time of the fires and how those practices might by improved for the future.
109. The purpose of this section of the narrative is to summarise the evidence about the history of fires and fire risk in the ACT, largely because much of that history (or at least the lessons of that history) were known to key senior officers at the ESB and can be assumed to have formed part of their thinking and decision making as the threat from these fires increased. It also provides some illustrations of how the threat from these fires might have been approached in years gone and thus offers practical examples of what might have been done differently by those managing the fires in January 2003.
110. At the time of the fires, the Bush Fire Council constituted under the Bush Fire Act 1936 was required by that Act to: in writing, prepare a Rural Fire Control Manual containing particulars of all aspects of the operation and organisation of the [Rural Firefighting Service][139]. The Bush Fire Act also contained provisions governing the matters to be included in the Rural Fire Control Manual and the process for approval of the Manual. The Rural Fire Control Manual in force at the time of the fires was the Rural Fire Control Manual of July 1992, a detailed extract from which appears at the commencement of these submissions[140]. The Rural Fire Control Manual governed all aspects of the organisation and structure of the ACT’s Rural Firefighting Service, including administration, organisational structure, infrastructure and equipment, safety, training, fire protection, fire control and incident management.
111. The extract of the Rural Fire Control Manual appearing at the commencement of the submissions, found in s.2.7 of the Manual and headed Characteristics of Fire and Fire Weather in the ACT, is notable in the context of these fires in a number of respects. In particular:
a. it identifies precisely the weather pattern confronted on 17 and 18 January 2003, including the fact that the most serious weather occurs just after a high pressure system has moved out in the Tasman Sea and a cold front is approaching across Victoria and southern NSW. Strong north-westerly winds often precede the front and as they are generated from dry air from the interior of Australia they may be extremely dry and very hot. Later in the extract, there is a direct reference to this weather pattern occurring roughly on a 7 day interval during a severe summer;
b. it includes a reference to the speed of travel of fires under extreme conditions and the amount that may be burnt in 8 hours: Under the worst recorded conditions grass fires can travel up to 18 to 20km per hour and fires more than 60km away may threaten the ACT. An area of more than 60,000 hectares may be burnt in 8 hours and if only two or three fires break out at the same time it is possible for them to burn most of the ACT. Also it must be remembered that fires starting within the ACT under these conditions have the potential to burn through to the south coast. In relation to the capacity of the firefighting authorities to have any impact on wildfires travelling under these conditions, the Manual notes: it is important that we recognise that, under these extreme fire weather conditions, which may occur every 5 years or so, it is impossible for any fire suppression organisation to control the fire if it is burning in abundant fuels…If a fire burns from some distance away and enters the ACT in a broad front then the fire suppression forces available in both rural and fire brigade services will be overwhelmed;
c. it acknowledges that much can be done with early detection and rapid initial attack;
d. it confirms the importance of a well informed community in preventing fire spread and saving lives. Prevention of loss of life and damage to property can be undertaken only by individual home-owners. Thus, it is vitally important for the ACT Bush Fire Council to promote a sound understanding of fire spread and what can be done under severe conditions to protect life and property and extend this to individual home-owners through the volunteer bushfire brigade movement;
e. finally, it refers to a number of historical fires to support the assertion that the potential weather to create widespread havoc within the suburban area has existed and there are adequate examples in history to indicate the potential for a bushfire disaster. Among other things, it identifies that in 1939, fires burning west of the Brindabella Ranges in the Mountain Creek and Flea Creek catchments (that is, burning in areas very similar to the areas affected by the McIntyre’s Hut and Bendora fires in January 2003), rained fire brands on Capital Hill, now the site of Parliament House.
112. Mr Lucas-Smith was asked in re-examination some questions concerning emergency planning in the ACT and, in particular, the decision of the Emergency Management Committee not to have a bushfire management plan. In the course of explaining why there was no bushfire management plan, Mr Lucas-Smith noted: From the bushfire side of things, what we had was a Bush Fire Act which described the powers and responsibilities for fire suppression in the ACT and also required the production of a rural fire control manual which outlined the structure and processes in relation to rural firefighting in the ACT. So we were already well on our way, I suppose, in a sense, to having a full operational plan.[141]
113. Mr McRae said in evidence that he was familiar with the Rural Fire Control Manual. He broadly agreed with s.2.7 of the Manual headed Characteristics of Fire and Fire Weather in the ACT but disagreed with some of the content. In the section dealing with the speed fires can travel and the area that may be burnt in eight hours, Mr McRae thought that there was a confounding in that material of grass fires and forest fires which have different characteristics. He expressed the view that: perhaps it needs to have the distinction between grass fires and forest fires fleshed out, but went on to say: But it is not to say I disagree with it[142]. Later Mr McRae described some of the concepts referred to in the document as simplified but, if you accept the simplification, I agree with what is in the document. It was suggested to Mr McRae that: the message that this is trying to convey is it is important not to underestimate the potential of fires taking hold in the ACT, to which Mr McRae responded: Totally agree. He also agreed with the reference to fire suppression forces being overwhelmed if a fire enters the ACT in a broad front[143]. Mr McRae also accepted that the potential was there for fires to create widespread havoc within the suburban area[144]. In relation to the 1939 fires raining fire brands on Capital Hill Mr McRae commented that the spotting distance achieved from that fire was near an Australian record to my understanding, but considered that the expression raining fire brands was overstating what occurred, to the extent that it was referring to long distance spotting.
114. In the context of discussing spotting distances, Mr McRae noted that: You will get burnt leaves falling out. That’s quite a common thing near large bushfires. Burnt leaves, black but cold, they are not fire brands. Raining fire brands sounds very unusual to me. Usually if they occur they will occur in small numbers[145]. This is an important distinction to have been drawn by Mr McRae, having regard to the Media Update issued by the ESB at 15:45 on 17 January 2003 and Mr Nicholson’s comment that the reference in that Media Update to ash and burnt material (emphasis added) was otherwise known as spotting and was providing information about embers and burning material[146].
115. Mr Graham confirmed that the Rural Fire Control Manual still governed the operations of the ACT Bushfire Service as at January 2003. Parts of the section extracted at the commencement of the submissions were read to Mr Graham during his evidence. Asked if he was familiar with the statements in that section, he responded: To the point that I have read the Rural Fire Control Manual through, yes. But I haven’t read it for some time, so I wouldn’t necessarily agree with all of those particular passages. He was aware as at January 2003 that under the extreme conditions that were prevailing at that time, the Rural Fire Control Manual did refer to the sorts of calamities that may arise. However, he could not recall reading that an area of more than 60,000 hectares may be burnt in 8 hours, and it is certainly not something I have ever experienced. He said that he did not believe that he had read numbers like that in any other document but did not disagree with it. Mr Graham also confirmed that he was not conscious at the time of the fires that during a severe summer a cold change occurs roughly on a 7 day interval.[147]
116. During his evidence in the first phase of the Inquest, Mr Cheney provided a brief summary, supported by a PowerPoint presentation, of fires in and near the ACT between 1920 and 2001. At least three of the early fires referred to by Mr Cheney in his evidence were discussed by Mr Lucas-Smith during his briefing of the ACT Fire Brigade and ACT Ambulance Service on 16 January 2001, in the context of discussing the potential of the January 2003 fires.[148]
117. In relation to the 1939 fire, Mr Cheney confirmed that:…the fire came from north of Wee Jasper and burnt into this area, which is called Mountain Creek and finally burnt out and stopped through the pine plantations in Uriarra and stopped when it came out to the grassland and the Murrumbidgee River…This was a similar drought situation, except that the fire control people had the benefit of rabbits and those pastures were really completely eaten out and almost bare, and so there was very little burning in grassland areas of the ACT, although spot fires…landed in Civic Centre… and also on Capital Hill…plus other spots which were in the grassland in the vicinity of Mt Stromlo[149]. In discussing the fire known as the Royalla fire that commenced on 13 January 1939, Mr Cheney explained that the shape of the fire could only be created because the areas in the middle of the fire that were unburnt, have been burnt 1 or 2 years before…The shape of that fire and many fires in high country up to 1939 and before were constrained by the degree of burning by graziers and other people in the intervening period[150].
118. In relation to the 1952 fires, Mr Cheney explained that these were two fires that started in January and February of that year. He referred to the second of these fires as the Stromlo fire and described that it occurred from lightning in February… and burnt through the grassland up over Mt Stromlo and didn’t go much further than Narrabundah Hill and the present location of Duffy, which at that stage was open farmland. Again, it was controlled once it came out of the forest and into the grassland[151].
119. Mr Cheney included in his PowerPoint presentation maps of a fire in the Tumut Valley between 3 and 13 March 1965. This fire occurred in weather conditions similar to those experienced in Canberra in January 2003. It had similarities to the fire problems that authorities were faced with this season. It started in the Tumut ravine …under very high fire danger conditions, made a brief run down to the south and then a run up…towards the east. They had 3 days in which to try and contain it before there was an extreme weather forecast and they had set out to establish control lines… and they were unable to complete that within the 3 days that they had[152]. Mr Cheney described that when these fires made their major runs on 6 March, they had basically 1 day spread distances of between 30 and 40km[153].
120. Mr Cheney included in his PowerPoint presentation and evidence on historical fires a more detailed description of a fire known as the Pago fire that started on 21 December 1972, in a similar location to the Bendora fire. It started off Warks Road…on a south-easterly aspect and it started in a forest with 1926 alpine ash and it burnt under somewhat more severe conditions. Mr Cheney explained that he, wanted to include this fire because in some respects it reflects some operation and cultural changes that have happened in the last 30 years. Mr Cheney later explained that at that stage ACT Forests were responsible for the fire, under the direction of Tony Fernside, who was the CFCO at that time. Mr Cheney was at the time involved in fire research and attended the fire as part of the ACT’s firefighting force. [154]
121. Mr Cheney began his presentation on the Pago fire by demonstrating that the weather conditions at Canberra airport were very similar to the weather conditions on 8 January 2003, 35 degrees Celsius, 15% humidity, with a wind speed of 32 kilometres an hour, which gave us a Forest Fire Danger Index just going into the extreme range, with a drought index of 103. I think it was 104 on 8 January. Although it was earlier in the year, Mr Cheney explained that there had been a hot spring and a short intense drying period. I don’t think the real levels of drought were as bad on this fire as they were in this year, although the index is about the same in Canberra[155]. The ignition was followed by 2 days of very high to extreme fire danger[156].
122. The fire was detected at 15:07 hours and probably started a little before 15:00 hours. Initial attack was a single light unit that came in at approximately 15:30 hours and it failed. Bulldozers and support tankers were brought in at 18:00 hours. They used a …variety of suppression actions. Direct attack with bulldozers on the western and eastern flanks, some burning out from roads and fire lines, mostly after midnight when the actual positions of the fire was known and some lines had been constructed. I think importantly it was contained by 09:00 hours and then patrolled for the following 3 weeks[157]. Mr Cheney’s PowerPoint presentation also referred to the construction of a hand tool control line along the south-eastern flank. Mr Cheney included in his PowerPoint presentation some photographs demonstrating the intensity of the fire.
123. Mr Cheney summarised his evidence on the Pago Fire in the following terms: So in summary, this was a fire that started in alpine ash forests. The fuels were up to 40 tonnes per hectare…Controlled overnight by combined attack with bulldozers, tankers, hand tool attack and burning out and held for periods of very high to extreme fire danger. I’d just like to add that the direction of the fire attack was held by two very competent forestry foremen…and really their knowledge of the country and knowledge of tracks and access and what could be done with bulldozers was fairly critical and the crews being able to bring that under control. And they had a very experienced bulldozer operator, who was on the job and really didn’t need instruction about how to build line around fires.[158]
124. In his report, Mr Nicholson suggests that: No doubt ESB senior managers were learning from the wildfire experiences of the Australian States and keeping abreast of developments in capability to deal with wildfire risk, then making budget requests to government [for] improved capability. Unfortunately, as an incentive to government to allocate funds necessary to grow the agency to meet its evolving responsibilities and take advantage of new developments in mitigating the wildfire threat, the ACT Bushfire Service had been too effective in pro2ecting Canberra from wildfire. Unlike Victoria, New South Wales and South Australia, the ACT had not experienced a “watershed” fire until January 2003. “Watershed” fires shock governments into fiscal largesse and the allocation of funds to upgrade firefighting equipment and implement new programs[159]. Mr Roche didn’t agree with Mr Nicholson’s view that the ACT had not experienced a watershed fire. I think the ACT had previously experienced significant fires, including 2001 and before that, that should have provided a catalyst for a whole range of changes; and I am certain that in fact it did. Mr Roche agreed that it was the combination of circumstances leading to a fire season as much as the fire itself that should affect the provision of resources for firefighting[160].
125. Mr Nicholson was asked whether the December 2001 fire was a watershed fire. He responded: Not really. I consider a watershed fire to be a turning or a defining event. My experience in other places is that a watershed fire, a defining, turning event has been where there has been loss of life, and maybe not just one life but significant loss of life[161]. In a different context, however, when Mr Nicholson was being asked about whether the ACT community should have been alerted to the dangers of the fires getting away by media reports on 17 January, Mr Nicholson commented: I think if you live in an environment, you are conscious of what goes on around you, and I think the people of Canberra/ACT had the advantage of major fires, the most recent in the Sydney region with fires burning into the back of Lane Cove – quite graphic television – fires in other parts of Australia, that it should have been a trigger. I don’t know that it needs to be spelt out chapter and verse. It should be a trigger, “Hey, there’s something going on here.” There should be some linkage with the bushfire education material that has been distributed[162].
126. Later in his evidence, Mr Nicholson was taken to the article written by him in the magazine Fire Australia in May 2002 entitled Bushfire Shock and Awe – Will We Ever Learn? Referring to (among other things) the January 2003 fires in Canberra. In that article, Mr Nicholson states: And what of the average citizen? Probably the majority of Canberrans prior to the fires in early January 2003 at risk from bushfire where the country meets the urban areas? From the extensive and sometimes graphic television coverage of the run of the fires into Duffy and other suburbs, newspaper photographs and discussions with people with homes directly involved, it seems most people had not given any thought to how a bushfire might affect them, particularly those residents abutting the open space surrounding and within greater Canberra[163]. In evidence, after drawing attention to two other paragraphs of the article, Mr Nicholson said: It is just a sad fact of life that until people are subjected to what I have called “a watershed event” or directly impacted, that they tend not to take notice. That is human nature. That is very sad, actually[164].
127. The fires that started to the west and north-west of urban Canberra on 24 December 2001 constituted the largest wildfire event faced by the ACT emergency authorities since their restructuring in 1995[165]. The Stromlo fire burnt 1240 hectares, including 510 hectares of plantation in two days, while burning under conditions of very strong west north-west winds. A further 111 hectares was burnt in the Huntly fire. As the report by Mr Bartlett into these fires shows, the features exhibited by these fires included frequent spotting over control lines by distances in excess of one kilometre, rapid spread (including a rate of spread of 2.5 km/h in the Stromlo Plantation) and difficulties in containment[166]. The fires of January 2003 exhibited similar features, although on a more dramatic scale. The 2001 fires were contained by the end of the second day, having in some places burnt up to the urban fringe. It is notable that containment was assisted by a burning-out operation successfully completed on the first night of the fires[167]. There were no significant injuries and no significant damage to built assets.
128. In his discussion and recommendations[168], Mr Bartlett emphasised the importance of quick deployment of the Incident Management Team following the outbreak of fire and that sufficient resources need to be provided to ensure that the Planning and Logistics Sections operate effectively at the fire control headquarters. He recommends that these sections must be adequately staffed on a two shift basis. Similar issues were discussed as part of a Bushfire Operation Strategic Debrief for Senior Officials into the fires on 16 January 2002[169]. Mr Bartlett also observed that: When a forest fire is burning under the weather conditions that prevailed on 24 December it is impossible to halt the forward spread of the fire. The Tuggeranong Parkway which might have operated as a major north south firebreak was no barrier to the progress of the fire[170].
129. The fires of December 2001 have been the subject of a separate inquest, and it is neither necessary nor appropriate to traverse to ground already covered in that inquest. However, those fires form part of the relevant background to the subject matter of this Inquest in three respects:
a. First, they prompted a re-think of the approach to fuel management in the ACT resulting in a revision of the draft of the 2002-2004 Bushfire Fuel Management Plan then in the course of preparation. Importantly, this revision saw a move towards broad-scale fuel reduction burning in forested areas, an approach that had been strongly advocated by a number of experts over a long period, as discussed below[171]. However, little could realistically have been done to commence the implementation of planned broad-scale fuel reduction before the January 2003 fires. The result was that, apart from areas affected by the 2001 fires and some additional prescribed burning by ACT Forests under the direction of Mr Bartlett prompted by the experience of the 2001 fires[172], as at January 2003 fuel loads in the Namadgi National Park to the west of Canberra were at maximum or “equilibrium” levels[173].
b. Secondly, the area burnt by the fires had prevented the spread of the January 2003 fires northwards through Black Mountain and around Government House and Yarralumla. Mr Cheney considered that, in the absence of the 2001 fires, the 2003 fires would have burnt on to Black Mountain but probably not much further than Aranda to the north:…but if it had burnt on to Black Mountain when the winds shifted from north-west to westerly, that would have had a similar impact on O’Conner as it did on Duffy. It may have been a bit less because it would have been an hour or two later in the day but I suspect not much[174].
c. Thirdly, the circumstances of the 2001 fires appear to have led to a perception on the part of some involved in combating the January 2003 fires that, as in 2001, the 2003 fires could be halted at the urban fringe[175]. This is despite the fact that, as discussed below, the conditions in January 2003 (particularly those forecast for Saturday 18 January) were known to be significantly worse than in December 2001. In an article in the Canberra Times on 29 November 2002, Mr Lucas-Smith is quoted as describing the fires experienced in December 2001 as probably only an entrée to what’s potentially going to occur this year[176]. Mr McRae broadly agreed with this assessment[177]. Further, in the period after December 2001 fires up and including the afternoon of 15 January 2003, Mr McRae repeatedly warned senior ESB officers of the severity of conditions, even when compared to earlier bad seasons: The fires last Christmas pushed ESB and many agencies of Government to their limits. And yet these fires occurred under Fire Danger Indices in the high 30s. An El Nino drought with strong winds would push Fire Dangers over 100[178]. On Saturday 18 January 2003, the forest fire danger index at Canberra Airport reached 102[179].
130. The purpose of this section of the narrative is not to examine and comment on policy decisions and other matters that may have resulted in the fuel management regime at the time of the fires. Rather it is to summarise the evidence that shows what that regime was and the state of the fuel loads that existed at the time of the fires as a consequence of that regime. It also confirms what the senior officers at the ESB knew about the those issues which, once again, can be assumed to have been part of their thinking and decision making from the moment they became aware that the fires had started.
131. The history of the management of forest and grass fuels in the ACT is conveniently summarised Mr Cheney’s report on Fuel Management in the ACT prepared for the Coroner. Omitting footnotes, Mr Cheney’s summary is as follows:
Since settlement basic fuel reduction in both forest and pastoral lands has reduced the impact of bushfires. There are few official records of deliberate burning-off, but oral histories suggest that burning-off in the Cotter catchment was extensive between 1926 and 1945 and low-intensity fires in the spring of 1938 reduced the impact of the 1939 fires and crash grazing (grazing pastures until they are eaten out) was common around homesteads on the rural leases until the 1970’s.
Broad-area prescribed burning under specified weather was introduced in the 1960’s by Alan McArthur who developed the first prescribed burning guide after conducting experimental fires in dry forests at Kowen and on Black Mountain. The first trials were carried on the foothills of Black Mountain (between the current location of Bruce Stadium and Aranda) and in the headwaters of Blundells and Lees Creek between Piccadilly Circus and Bulls Head. The first prescribed burn ignited from aircraft in eastern Australia was conducted in the Flea Creek catchment in 1967.
Broad-area burning was conducted on the bushfire lease area during the late sixties and seventies but after 1985 an active hazard reduction burning program has not been pursued because the fuel loads were not considered to be heavy in areas adjacent to assets. After 20 years fuels in most forest types would be approaching their equilibrium levels.
Within the ACT, the last major burning in forest areas was 118 hectares on the western slopes of Mount Tennent. Apart from the burning of debris after harvesting pine plantations fuel reduction by burning was generally less than a few hectares and focused around the assets within the reserves.
Since 1990 fuel management has focused on the urban interface and planned at the micro scale (and in my opinion managed to the micro scale as well) (2002 – 2004 ACT Bushfire Fuel Management Plan). The primary focus was fuel management to protect assets of value (with some notable exceptions such as the Stromlo Observatory) both on the urban fringe and within the areas managed by government land management agencies. My review of the draft 2002 – 2004 Bushfire Fuel Management Plan pointed out the lack of broad-scale fuel management programs particularly in areas managed by ACT Forests and Environment ACT. In my opinion, the condition of the fuels adjacent to the urban areas of the ACT, setback distances from forest vegetation and the compact nature of ACT urban development provided Canberra with the safest interface of any city within the equivalent or higher rainfall zone anywhere in Australia. Other fire experts agree.
The fact that bushfire burnt into the urban area under extreme conditions did not reflect a failure of fuel management on the urban interface but rather a failure of fuel management in the forest areas. Heavy fuels hindered suppression efforts early in the fire development and contributed to the fires burning a large area before the onset of extreme fire weather that the drove them into Canberra. While not reducing the effort on the urban edge fuel management is required in the forests to assist suppressing fires at an early stage.[180]
132. Mr Cheney’s summary is broadly consistent with the fuel management documents identified and summarised during the first phase of the inquest[181] and with the McLeod Report[182]. The latter also makes reference to the establishment of the Task Force on Bushfire Fuel Management Practices chaired by Mr Graham Glenn AO, to identify possible inadequacies in the then current bushfire fuel management approach: The Task Force’s principal recommendation called on government land managers to produce bushfire fuel management plans for the land over which they had control and specified that these plans should be submitted to and approved by a Bushfire Fuel Management Committee[183].
133. The work of the Task Force was preceded by a review into the fire hazard reduction practises of the ACT Government with particular emphasis on the role and functions performed by the (then) ACT Parks & Conservation Service. That review was undertaken by Mr HR McBeth who notes in his report of the review that he was to: provide an expert opinion on the capacity of the activities undertaken by the Service to modify the impact of bushfires (either including deliberate, accidental and natural ignitions) on the urban interface with lands under its management.[184] Both the report by Mr McBeth and the work the Task Force chaired by Mr Glenn were prompted by: a difficult bushfire season in New South Wales in 1993-94 including a number of fires in the ACT that threatened property, one of which caused minor property damage in Curtin[185].
134. The report by Mr McBeth is notable not only because he is critical of the lack of fuel management planning and practices in place in the ACT at the time of his report[186], but also identifies in unequivocal terms the inevitability of what he describes as a conflagration fire disaster in the ACT and on its urban rural interface:
The “Bush Capital” Canberra populous as a whole migrated to the Capital with its industry or enterprise base being predominantly Government Administration and Ancillary Services. The vast majority of these people came from other urban communities with no tradition, experience or understanding of living in the bush or with successive bushfires…Although major fires swept across the ACT “Bush Capital” in 1936 and again in 1952, Canberrans have not been subjected to the ravages and trauma of events like Hobart 1967, Ash Wednesday 1 1981 in South Australia; the deaths and mutilation of fire fighters in the Royal National Park, Sydney, 1983 or the 1983 Bushfire Disasters in Victoria and South Australia.
Culturally, socially, politically and departmentally the ACT community is and has been lulled into a sense of false security with regard to the ravages of bushfire.
If the existing Government Statutes Departmental Structures, Reporting Relationships and Programming of Wildfire Mitigation Works continue as currently structured, it is inevitable that significant loss of assets will accrue together with loss of life during the next single, multiple or configuration fire event.
The urban rural interface will obviously bear the brunt of such losses.
The author stresses a set of climatic conditions will eventuate producing “fire weather” conditions of such an intensity that such losses will occur.
It is not if such a disaster will occur, but when[187].
135. According to Mr McBeth, to reduce the impact of the type of fire that he predicted would occur in the ACT resulting in loss of life and significant property damage: individuals, families, street communities and government agencies as a whole must manage the only manageable component of fire physics [namely, fuel loads] in a collective cooperative manner[188].
136. Mr McBeth attached to his report a document by Mr Cheney, commenting on the report by the Hannon Group Pty Ltd on the ACT Fire and Emergency Services in September 1991. Although this document is concerned primarily with the then proposed restructuring of the ACT Emergency Services, it includes observations similar to those by Mr McBeth: The fundamental basis for disaster management, which includes bushfires in Australia, is to carry out an analysis of the worst case scenario. Our knowledge of fire behaviour and fire weather is adequate to realistically put a worst case scenario to the people of the ACT and perhaps to estimate a frequency of occurrence and to estimate the damage which is done…My estimate is that a 1-50-year conflagration fire will burn a total area of around 60,000 hectares in 1 day and severely damage suburban dwellings where they are adjacent to forests, hill parks and nature reserves. Under this scenario the firefighting resources of the ACT will be totally overwhelmed. They will not have enough tankers or pumpers to attend every house threatened, and by and large destruction will be limited only by the action that residents themselves take both before the fire occurs to reduce the fuels around their homes and, during he fire to suppress embers and spot fire starting in their gardens and dwellings.[189]
137. In evidence, Mr McBeth was asked whether any requests were made by anyone during the time of his investigations in 1994 in relation to attempts to improve the fuel reduction regime. His evidence was that the only people that he could recall who had the level of anxiety about the issue that he thought appropriate, were Mr Lucas-Smith and Mr McRae[190].
138. This same concern is reflected in the document prepared by Mr McRae in February 2002 entitled The Phoenix Imperative Some Thoughts on the Namadgi Fire Age Bottleneck and the evidence of each of Mr Lucas-Smith and Mr McRae concerning the issues raised in that document[191]. Mr McRae’s document is introduced by the following warning: In recent history Namadgi National Park has rarely carried fire, and when it did they were often very large wildfires – over 20,000ha. The park is in a vicious cycle – by keeping fire out most of the time, we are endorsing the occasional very large wildfire. However very large wildfires are the ones that are able to leave the reserve and damage property elsewhere. They are also the fires that can cause the most impact on biodiversity management goals.[192]
139. In the cause of promoting an active fire management programme, Mc McRae made a number of remarks in the document concerning the fuel loads then existing in the Namadgi National Park and the consequences of a fire starting in the park: Namadgi National Park covers a large fraction of the ACT, and is the area in which extensive landscape fires are most likely to occur. While there are few valued (non-environmental) assets within the Park, the exception being the water supply catchment, its neighbours could suffer large losses from fires leaving the Park
For most of the Twentieth Century the area suffered very large wildfires every decade on average. The legacy of these was that its fire age distribution was concentrated in a few large clusters. However there has been no large fires in 20 years now, and basically the entire area is now at or near equilibrium – ie. maximum-fuel loads. Only around 20ha out of 120,000 would be fuel reduced in any way.
The potential for a drought to occur shortly as a new El Nino forms in the Pacific Ocean raises the spectre of the highland fuels in the Park becoming flammable. Should they be ignited, than a fire could easily become a landscape fire if the FDI is high enough. Difficult access makes rapid suppression harder than elsewhere in the Territory. [193]
140. Mr McRae broadly recommended a fuel reduction programme by burning areas of the Namadgi National Park in rotation to achieve a “fire age spectrum” where roughly 20% of the Park will have been burned in the last 0-10 years, a further 20% in the last 10-20 years, 30% in the 20-50 year age class and the remaining 30% over 50 years. Mr McRae notes that, when this spectrum is achieved: This also gives a high likelihood of a large head fire eventually reaching fuel-reduced ground, and becoming more controllable[194]. Thus, consistently with Mr Cheney’s report to the Coroner[195], Mr McRae’s document is promoting broad-area fuel reduction as distinct from fuel reduction burning targeted at particular assets[196], and reinforces that the purpose of fuel management is to assist in fire suppression.
141.
In this regard, Mr Cheney identifies the aim of fuel management as being:
To alter the structure of the fuel bed and the load of the available fuel to
make firefighting safer and easier[197]. Mr Cheney goes on to explain that:
Hazard reduction burning will reduce the total load of fine fuel and is also
effective in reducing the height and flammability of elevated fine fuel such as
shrubs and suspended dead material. Burning is the only practical way of
reducing the fibrous bark on trees, which is the prime source of firebrands that
cause spotting. Hazard reduction reduces fire behaviour
by:
• reducing the speed of growth of the fire from
its ignition point;
• reducing the height of flames
and rate of spread;
• reducing the spotting potential
by reducing the number of firebrands and the distance they are carried down
wind; and
• reducing the total heat output or
intensity of the fire.
Prescribed burning is not intended to stop forest
fires, but it does reduce their intensity and this makes fire suppression safer
and more efficient. Prescribed burning is not a panacea nor does it work in
isolation. It must be used in conjunction with an efficient firefighting
force[198].
142. To the knowledge of at least Mr Lucas-Smith and Mr McRae, none of the potential advantages of broad-area fuel or hazard reduction burning described by Mr Cheney above were available to those tasked to fight the Bendora, Stockyard Spur and Mt Gingera fires, each of which burnt within the Namadgi National Park from 8 to 17 January 2003. Mr Lucas-Smith confirmed that there had been no rigorous burning programme as recommended by Mr McRae in his Phoenix Imperative document. The Bush Fire Council organised a field trip with the Land Management Agencies and the people responsible for the catchment, to go out on site and have a look at the fuel loads and talk about the issues in relation to Mr McRae’s document and there was a fair bit of discussion. But there was still a need for more work to be done[199]. Mr Lucas-Smith was a little disappointed that the land managers were not responding more proactively to the issues that had been raised. He had not seen any plans developing either through the Bushfire Fuel Management Committee or from the Land Management Agencies to start to address this issue of high fuel loads in a lot of the catchment areas of the ACT[200].
143. Mr McRae acknowledged that the risk had not been mitigated, but considered that the fact that nothing had been done by January 2003 to implement the burning program recommended by him in February 2002 was acceptable, because a lot of preparation was required[201].
144. Mr Bartlett gave detailed evidence concerning the fuel reduction works undertaken by ACT Forests during 2002. He noted that the 2000-2002 Fuel Management Plan is supposed to give details of what ACT Forests needed to do in that plan period, but he found it confusing[202]. He nevertheless ensured that ACT Forests took some steps over and above what was in the plan. These are referred to in Mr Bartlett’s evidence[203], and in his supplementary statement[204]. It is unclear what (if any) effect these works had in mitigating the spread and intensity of the fires after they burnt into plantation areas on 18 January 2003[205], but those works are not relevant to any consideration of fuel loads and consequential fire spread and intensity in native forest areas.
145. In this regard, Mr Bartlett noted in evidence that, from his time working on the fires, the fuel loads in the Bendora area were very heavy. He agreed that it would be reasonable to say that the fuel loads were heavy in all locations and that did have some impact on firefighting operations[206]. He would have said that fuel loads would have been generally in excess of 25 tonnes per hectare and in some places quite a bit more than that. According to Mr Bartlett, that is at the scale in eucalypt forest where the fuels become in equilibrium or as high as it can get[207].
146. The state of the fuels in the Brindabella National Park under the control of the NSW National Parks and Wildlife Service and, more particularly, in the area of the National Park affected by the McIntyre’s fire, is referred to in the joint submission from the NSW Rural Fire Service and the NSW Parks and Wildlife Service to the NSW Coronial hearing. The submission states: In January 2001 an additional 6192ha was added to Brindabella National Park, including the section east of the Goodradigbee River, and a large area NE of Mt Coree. The majority of these additions had not been burnt for a long period, with areas along the Goodradigbee not subject to fire since 1972 and most of the area north-east of Mt Coree last burnt in the 1939 fires. The site of the McIntyre’s Hut ignition on 8 January 2003, the eastern edge of the Baldy Range ignition and the area where the fire broke containment lines on 17 January 2003 are all located within the area added to Brindabella National Park in January 2001. (emphasis in original) [208]
147. A chart later in the submission summarises estimated fuel loads in each of those areas at the time of the fires[209]. Notably, fuel loads at the McIntyre’s ignition point are estimated at 10-14 tonnes per hectare and at the Baldy Range ignition point the estimate is 12-20 tonnes per hectare. This compares with fuel loads up to 30 tonnes per hectare estimated for the area of the Mountain Creek ignition points. The submission assesses whether a practicable and implemented program of block burning in the National Park would have had any impact on the development of a major fire event in the Park. It concludes that the likely impact would be minimal: Table 2 compares the influence of fuel loads on rate of spread given the conditions prevailing at the McIntyre’s Hut ignition on 8 January. It demonstrates that even if the surface fuel loads had been reduced from 14 to 4 tonnes/ha (which would require a higher intensity hazard reduction burn than would be desirable), the fire would have reached the top of Webb’s Ridge about one hour later (ie at approximately 1830 hrs instead of 1730 hrs). Given the time required to travel from (sic) to the area, and the presence of other fires in the locality and the associated risk, this would have made no difference in the ability to put firefighters in front of the fire that night, nor the decision to go to an indirect containment strategy.[210]
148. This accords with the evidence of (among others) Mr Cheney concerning the likely futility and risks associated with attempting to control the head of the fire at the Webb’s Ridge track on the afternoon or evening of 8 January 2003[211]. However, the submission does not examine the likely impact of the alternative indirect containment strategy advocated by Mr Cheney that would have seen an early concentration of firefighting resources in the areas of lower fuel loads at Lowell’s track near the site of the McIntyre’s ignition point and on the Baldy Range, resulting in a significantly reduced burnout area[212].
149. This section outlines briefly the structure and operation of the ESB, which is a necessary part of the factual matrix because it assists a proper understanding of the organisational dynamics operating at the time of the fires. It also identifies those particular aspects those operational dynamics that appeared to directly affect decision making on both the issues of initial response and warnings.
150. Aspects of the history and structure of the ESB are conveniently summarised in a number of documents in evidence before the Inquest[213]. For the purposes of these submissions, it is necessary only to note that: At the time of the January 2003 fires, with the exception of policing, emergency services in the ACT were provided by the … ESB. Policing is and was provided by arrangement with the Australian Federal Police… The ESB was a government agency having the responsibility for emergency management and other support arrangements throughout the Territory…the ESB was an administrative unit within the Department of Justice & Community Safety, responsible to the Minister for Police and Emergency Services and comprised four emergency service response organisations, specifically the ACT Ambulance Service, the ACT Bushfire Service, the ACT Emergency Service and the ACT Fire Brigade. These operational services were supported by a corporate administration function comprising a number of units and four operational and administrative support units within the ESB. Within its corporate portfolio, amongst other matters, the ESB was responsible for public safety education, public safety information and community support relating to public safety and emergencies. The organisational structure of the ESB as at January 2003 is set out in a charter at page 6 of the … McLeod Inquiry Report[214].
151. There are five aspects of the ESB’s structure and operational arrangements that, on the evidence, form part of the factual matrix informing the broader issues of initial response and warnings. These are:
a. the Service Management Team concept;
b. the position of the media unit in the organisation structure;
c. the ESB headquarters as a control centre;
d. the allocation of roles; and
e. weight of response.
152. The Rural Fire Control Manual confirms that[215], at least since the publication of that manual in July 1992, bushfire emergencies in the ACT have been managed in accordance with the Australian Inter-Service Incident Management System Incident Control System (“AIIMS ICS”)[216]. In very broad terms, under that system, an incident is managed by the Incident Controller or IC. The principal responsibility of an Incident Controller under the system is set out in Mr Roche’s report[217]. The role of the Incident Controller is supported by three subsidiary roles, namely planning, operations and logistics. As their name suggests, the Operations Officer is generally responsible for managing the response to the incident (in this case the fires). According to the Roche report, during large incidents, the role of the Operations Officer shifts away from front line activity into appraising the performance of divisions and providing information to the IC. The Operations Officer’s time should be allocated to: crisis resolution; supporting Division Commanders; strategic planning, briefing the IC; and ensuring that communication systems are effective[218].
153. The Planning Officer is responsible for the collection, evaluation and dissemination of information about the incident, including information on the current and forecast situation. Under the AIIMS ICS structure, there are a number of units under the Planning Officer, including the situation unit which is engaged in the collection, analysis, processing of information and incident predictions and the Information Services Unit. In his report, Mr Roche notes that: An Information Officer or Media Officers attached to the Information Services Unit will usually be the first point of contact for the media or other agencies to obtain information pertinent to the incident. The Information Services Unit is expected to develop strategies to manage the media, communicate across agencies and to government and to keep the community informed. For multi-agency incidents, only one Information Unit should be established with staff appointed by other responsible agencies integrated into the Situation Unit[219].
154. Finally, the logistics section is responsible for ensuring the required facilities, services and materials are readily available and adequate planning occurs in the areas of response, resource availability and staffing. It also has a number of sub-units ranging from air support to catering.
155. The system of incident management that had been adopted by the ESB at the time of the fires in January 2003 was described in evidence by Mr McRae as a local variant of the AIIMS ICS system. In a lot of areas, local arrangements force some tweaking. It is our response to make ICS allow to fulfil the obligations under the Bush Fire Act[220]. In his statement, Mr McRae described the SMT as follows: At that time, management of bushfires in the ACT used the concept of a Service Management Team to coordinate overall activity and to provide centralised roles. The SMT is organised and run in the same way as an IMT. SMT roles and responsibilities, and their linkages to IMTs were clearly defined in standard operating procedures then current. The SMT is housed in ESB headquarters while IMTs work in the field[221]. In evidence, Mr McRae identified the document he had referred to in his statement standard operating procedures was a document headed The SMT Role in ICS[222].
156. The document referred to by Mr McRae defines the SMT Role in the following terms: The SMT is the executive of the ACT BS, which has legal responsibility for all bushfire incidents outside the built up area, and includes the Chief Fire Control Officer (CFCO), DC [Duty Coordinator] and any other officer assigned to the SMT. The SMT is structured in the same way as the IMT, ie Controller, Operations Officer, Logistics Officer and Planning Officer. The SMT establishes policy, gives direction and allocates authority and resources to the IC. Given that the ACT is a small jurisdiction, it is not practical to duplicate certain functions. The document then goes on to identify certain functions that are only available through the SMT, including certain specialised resources and fire weather forecasts. Under the heading SMT Responsibilities, the document provides that: The SMT delegates to the IC the responsibility for effective management of the incident. In some circumstances this delegation may be in writing, but generally it is verbal. The document provides that the Incident Controller has responsibility for incident objectives (in consultation with the SMT) and the strategy or strategies to achieve objectives. Notably, the SMT’s responsibilities include: Identify hazardous and adverse conditions that may compromise firefighter and community safety, monitor multi jurisdictional concerns, manage media participation, and monitor social and policy concerns[223].
157. In his statement and evidence, Mr Bartlett referred to concerns held by him about the implementation of AIIMS ICS by ESB during the December 2001 fires and, according to Mr Bartlett, some of the fundamental problems were still evident in the 2003 fires[224]. Mr Bartlett considered that: On the basis of my experience, for ICS to be effective there is a strong need to have a close link between the planning and operational sections[225]. Mr Bartlett agreed that despite the importance of that close link, to his perception, there was anything but a close link between those sections during the 2001 fires, a problem that was still evident in the 2003 fires[226]. Later in his evidence, while expressing the view that the planning and logistics needed to support operations in the management of an incident need to be located as close as possible to the fire, Mr Bartlett clarified that: …in a number of cases in the ACT that could be at Curtin. It is not so much the location that is an issue; it is the management responsibility for those sections. Mr Bartlett agreed that there is not a problem with planning being done at Curtin, provided the product of the planning is being disseminated effectively to the controllers in the field, and also the input from the field people into the planning as well. It is a two-way process. Mr Bartlett referred, in particular, to a problem of there being no clear plan for deploying resources, that’s why people were sitting around, until it was worked out as to where they were going to go. According to Mr Bartlett, there was no routine incident planning process during the 2001 fires and there were similar problems in the 2003 fires[227].
158. Mr Bartlett also made specific reference in his evidence to the importance of control headquarters being adequately staffed on a two shift basis. In order to develop the plans to deploy the people for the day shift, you have to have someone working during the night; and conversely the other way. The people on the day shift work during the day, and then the last task they do is hand over the plans for the night shift. So it needs to be a 24 hours a day operation. In Mr Bartlett’s view, the criteria for determining whether, for example, an overnight planning section should be operating is whether the fire is likely to continue beyond the first 24 hour period. I mean, if people are going to be working on the second day then someone needs to plan during the first night what they are going to be doing. Mr Bartlett had a fairly strong conviction that the January 2003 fires were not going to be put out on the first day.[228]
159. More broadly, Mr Bartlett confirmed that he did not have a problem with the way the Service Management Team is described in the ESB document describing the SMT role in ICS. But that wasn’t the way it operated in 2003. According to Mr Bartlett, the difference was that: The document…indicates that there would be full incident management team set up for each incident, and that is certainly not what happened in 2003, and that the role of the Service Management Team would be more coordination rather than detailed operational planning for an incident. Mr Bartlett considered that there was a real need for a full incident management team for the Bendora fire. It needed the capacity to have a planning section that could develop the details of deployment for a particular day. Mr Bartlett also referred in his statement and his evidence to a number of instances where Comcen was giving instructions directly to firefighting resources under Mr Bartlett’s control and, in a number of cases, he had to override those calls from Comcen. [229]
160. In the context of discussing the concept of the SMT, Mr McRae gave evidence that he certainly expected that there would be a planning unit in the field, comprising a dedicated planning officer with, under them, dedicated officers in the situation unit and perhaps other elements of the planning cell, if the situation required it[230]. Mr McRae agreed that by about 9 January the fires had developed to a stage warranting having someone in those roles. Mr McRae thought that some of those roles were being done in Curtin and some in the field but he did not have a good recollection of what was being done in the field, because I was busy managing what was needed in Curtin. Mr McRae did not know whether or not there was a dedicated planning unit operating in the field at any stage up until 18 January. He went on to say that: It was never the intention that planning in Curtin would be doing all of the planning functions for all of the fires, but Mr McRae did not have a strong recollection of what the structure was in the field. It was put to Mr McRae that, as the planning officer within the SMT with all the resources available to him, he would have been aware if there was someone fulfilling a discreet planning function in the field because he would have been communicating with that person. Mr McRae responded: There was a problem with communications which prevented me from directly communicating with the Incident Management Team in the field… That was to do with the physical separation between the parts of our headquarters where the radio is and the part of the headquarters where the planning section had to operate[231]. Later in his evidence, Mr McRae referred to Mr Taylor travelling to the Bendora fire as a representative of my section…He wasn’t tasked to the Incident Controller in the field. He was tasked to me. …As I say, his goal was to make sure the information was synchronised. Mr McRae agreed that it was part of his role to support the incident controllers in the field[232].
161. Mr McRae would not agree that, in a general sense, the entire planning function in relation to the period from 8 to 18 January was being conducted under his supervision out of Curtin. According to Mr McRae, all of our key officers are trained in ICS, and that includes trained to operate as planning officers… in the absence of a dedicated planning officer the incident controller does those functions. Mr McRae assumed that the planning function was to some extent being carried out in the field and that the incident controllers in the field were responsible to ensure that planning function was being carried out adequately either by them as having absorbed all functions or by someone dedicated to that task[233]. Mr McRae considered that responsibility for incident prediction to support strategies and tactics lay with the field controllers and incident prediction to support coordination lay in Curtin and was ultimately Mr McRae’s responsibility[234]. Mr McRae later explained that he would expect a person in the field who is undertaking the planning function to be predicting for the current shift and the next shift[235].
162. Mr McRae also confirmed in evidence his view that the responsibility for completing incident action plans rested with the incident controllers in the field and any planning staff that they had identified or nominated. Mr McRae suspected that the problems encountered during the fires with the preparation and provision of incident action plans were more fundamental to do with the training that was given to people beforehand and our inability to adequately exercise these roles. Mr McRae agreed that, in hindsight, it was fairly clear that people did not properly understand the way in which the SMT structure was supposed to work[236]. In reference to the SMT document, it was put to Mr McRae that having an SMT with each of the functional roles filled at Curtin and, at least in a theoretical sense, having an incident controller in the field again with each of the functional roles under the incident controller being filled, creates the very vice that this document is seeking to avoid; namely duplication. Mr McRae responded: With hindsight, we know it created a number of issues. We have put considerable effort into fixing them. We didn’t anticipate these issues arising until we were in the middle of a large incident.[237]
163. Mr Graham gave evidence that he would not necessarily agree that the SMT is a variation on the standard ICS structure. We still had incident management teams and we had an incident controller; and each of the fires were allocated an incident controller and a number of people to make up their team. What we were doing back at Curtin was we were providing a strategic overview. We were providing them with the additional resources that they might require. Mr Graham considered that the role of the SMT was similar to what the NSW Rural Fire Service do at their Rosehill headquarters[238]. However, Mr Graham agreed that, unlike the Incident Management Team managing the McIntyre’s fire out of Queanbeyan which was a fully constituted Incident Management Team, the incident controllers in the field may from time to time have had someone fulfilling a role not unlike an operations officer but at no stage did the incident controllers have a planning officer working under them. Mr Graham noted that there were instances where people from the planning unit at Curtin went into the field to provide guidance, but he agreed that they were working under Mr McRae. Mr Graham agreed that in reality what the incident controller in the field was having to do in order to ensure that those other functions within the ICS structure were being fulfilled, was to refer back to Curtin and he accepted that that was a significant difference between what was operating at Queanbeyan and what was operating out in the field in respect to the ACT fires[239].
164. Mr Graham could not specifically recall a discussion with Mr Bartlett on 12 January during which Mr Bartlett raised concerns with Mr Graham about the lack of operational planning and support for operation staff at Bendora and the need for a forward control point in response to which Mr Graham provided some support staff, but indicated that they would only be available to assist with crew changeovers and that the main planning function would continue to be undertaken in Curtin. However, he agreed that it was consistent with his approach to the way in which the fire had been managed that he would say that to Mr Bartlett. He also agreed that the only planning function was in Curtin. Mr Graham went on to accept that, although people in the field might have the title Incident Controller, in fact because they had no planning function supporting their role in the field and had to rely on Curtin for that, the reality was that they were fulfilling a role equivalent to a Division Commander under the ICS structure. [240]
165. Mr Graham also agreed in evidence that, while the tactics were being determined in the field, in terms of the strategies, I would suggest it was probably a fairly equal mix of who was devising what. And certainly as the incident was escalating, the development of strategies were being done more in the field than back in Curtin. On the other hand, Mr Graham agreed that there was very little being done in the field to take things beyond the next shift[241]. Mr Graham also accepted that the role of officers in the field designated as incident controllers may have been made difficult by the fact that they had primary responsibility for a particular incident but effectively no planning or other support in the field[242].
166. In his report, Mr Roche noted that the concept of the SMT is not unique to the ACT. Most firefighting agencies replicate the functions of an IMT at their corporate operations headquarters to ensure adequate support is provided to the IMT. It also needs to be recognised that the agency with prime responsibility for the incident will be required to ensure that senior officers of the organisation who have an executive management responsibility are kept informed and government is adequately advised of each situation. This is a function that should remain at the corporate headquarters. Where multiple events occur and multiple agencies are involved, it is likely that more than one IMT will be established. Under these circumstances the functions and activities of each IMT need to be coordinated and resource allocation prioritised. It is also prudent that media and public information is managed centrally to ensure that stakeholders receive the total picture rather than having to piece elements together[243]. However, Mr Roche goes on to express the view in his report that: …when agencies operate using this framework, there must be clear and unambiguous delineation between what are the responsibilities of the headquarters team and those of the IMT. Although the concept of an SMT appears to have been well intentioned, I am firmly of the belief that the manner in which the concept was applied in January 2003 caused significantly confusion among personnel, poor planning and inadequate information to the community. Mr Roche summarises and references in his report the evidence of witnesses suggesting that personnel assigned to key positions had conflicting opinions on the role of the incident controller in the field and the SMT at the ESB headquarters[244].
167. Mr Castle confirmed in his evidence that: …the media cell that was established is actually part of the planning function within the ICS system, so the planning – the media people that actually were obtaining information were part of the planning function. He confirmed that the media unit was actually physically located in the same area as the planning unit[245]. Mr McRae confirmed that under the ICS structure, the media unit sits within the planning cell but that, for the purposes of these fires, the decision would appear to have been made by Mr Castle to treat the media along the lines specified in the media part of the ACT Emergency Plan, which is something that is a well-practised process. It is my understanding that’s why Ms Harvey was brought in. What that required to mesh media into the Service Management Team structure was for Ms Harvey to be working to Mr Castle or Mr Lucas-Smith as required but in terms of locking the media unit into the ICS structure, is still to report to me. What that means is, if there is content of media material she works with Mr Lucas-Smith or Mr Castle. But if she needs to ask for a meal to be provided then she comes to me.
168. According to Mr McRae he did not have any responsibility during the period of the fires for media releases by the ESB. Asked if he could identify the individuals who did have responsibility for the content and issuing of media releases, Mr McRae gave evidence that: In terms of content there is perhaps not an easy answer to that. We would discuss at planning meetings from time to time media information, and in that sense the whole team was having some input into media content. But after the planning meetings, it was my understanding that Ms Harvey and Mr Castle and perhaps others would go and do the wordsmithing to come up with a polished media release. Mr McRae’s evidence was that the person with responsibility to make the decision that information needed to go out to the public, whether in the form of a media release or some other form, would be Mr Castle or perhaps Mr Lucas-Smith from time to time. Mr McRae considered this arrangement a very slight variation on what is contemplated under the ICS structure[246].
169. Mr Prince and Ms Harvey also gave evidence that Ms Harvey reported to Mr Castle and Mr Lucas-Smith[247]. Ms Harvey confirmed that it was the responsibility of Mr Castle and Mr Lucas-Smith to make sure that, where a threat had been identified, people were notified of that threat. According to Ms Harvey, the people who were responsible for giving her the instruction to get a warning out to the community, were either or both of Mr Castle and Mr Lucas-Smith, and possibly some of the other high level public servants who were involved at that stage and directing us what we needed to be doing. The context of this evidence suggests that the high level public servants that Ms Harvey was referring to in this answer were Mr Keady and Mr Tonkin[248].
170. In his statement, Mr Gellie remarked on the fact that the media unit was, in effect, operating outside the planning unit in the following terms: The community relations aspect of planning was not initiated. This meant that a lot of stress was placed on public relations via media, rather than creating a string of local networks to prepare the community for potential threats. This should have been a lot given a lot more priority and attention in the lead up to and during the fire emergency.[249]
171. It appears to have been universally accepted by those with whom the issue was raised in the course of the evidence that the layout of the ESB headquarters hampered the efficient management of the fire emergency in January 2003. However, no witness suggested that this contributed in any material way to any deficiencies in the initial response to the fires, nor to the development and dissemination of timely information and warnings to the ACT community.[250]
172. In particular, Mr Graham was asked whether his earlier comments about concerns over the layout of the facility at Curtin might have impeded those responsible for issuing warnings to the Canberra community. Mr Graham responded: No, that’s not wh