BUSHFIRES ROYAL COMMISSION

SUBMISSIONS ON BEHALF OF RUSSELL REES

________________________________________________________________________Date of document: 25 May 2010 Filed on behalf of: Russell Rees Prepared by: Tel: (03) 9032 3003 John Lynch Fax: (03) 9032 3049 Crown Counsel DX: 210077 Level 25/121 Exhibition Street Ref: 1082528 MELBOURNE VIC 3000 Attention: Natasha Maugueret

Introduction

1. The Commission has been invited by Counsel Assisting to make adverse findings about

the conduct of a number of individuals, including senior officers of the CFA and DSE, and

specifically Mr Russell Rees. The findings they urge are all by way of criticism.

2. The criticisms of those individuals are not warranted and should not be the subject of any

findings by the Royal Commission, for a range of reasons:

(a) They are likely to damage the individuals and the organizations involved, and will

do nothing constructive to improve the response to fires in the future;

(b) They are largely based on a misapplication of hindsight;

(c) They ignore the evidence given by Professor Leonard and Mr ‘t Hart.

Findings should be constructive, not destructive

3. The terms of reference focus, quite properly, on the systemic matters which might have

resulted in an improved response to the fires on 7 February 2009. The Governor’s

Commission notes that the weather conditions on 7 February were unprecedented in

terms of high temperatures, low humidity and wind speeds, following years of drought

and a heat wave. The Governor’s Commission also acknowledges the significant

dedication and efforts of staff and volunteers in responding to the emergency in

extremely difficult conditions, in what was the largest coordinated emergency response in

the State’s history.

4. It is clear enough that global warming will produce conditions in the future which will very

likely result in further catastrophic fires. The focus of the Commission’s report should

properly be constructive, not destructive. It is more important to identify ways in which

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the improvement of the fire services can continue, than to identify individuals whose

performance in extraordinary, unprecedented circumstances, may have fallen below the

standard Counsel Assisting would set.

5. Australian-average annual temperatures have increased by 0.9ºC since 1910.1 The

“warming trend” is reflected in extremely high temperatures and extreme fire danger

days.2 Over the next 10-40 years, a Forest Fire Danger Index (FFDI) exceeding 100 is

likely to occur more often.3 Climate change requires an enhanced emergency response

to adapt to new fire threats. Continuous improvement of fire services should be the aim.

The State must make improvements to our response to fires which respond to increased

knowledge of climate change, demographic changes and changing circumstances. Even

with maximum encouragement and cooperation between Governments and emergency

service agencies, it will be difficult to meet the challenges of future catastrophic fires.

Morale crushing criticisms will not assist.

6. The Commission should encourage the CFA to continue its trajectory of improvement.

Since 7 February 2009, the CFA has made a number of improvements under the

leadership of Mr Rees. For example:

(a) CFA, along with DSE have agreed to implement prescribed standards of

preparedness of ICCs, including procedures for timely escalation of level 3

ICCs.4

(b) CFA and DSE have agreed to endorse IMT personnel to the same standard and

have also agreed that by 30 June 2011, they will develop joint training packages

for key IMT personnel.5

(c) DSE and CFA have agreed to have pre-positioned IMTs staffed according to a

prescribed standard.6

(d) CFA has introduced new standard operating procedures J2.03 regarding Incident

Management Teams Preparedness Arrangements7 and CFA and DSE have

prepared new guidelines for the AIIMS Information Unit.8

1 CSIRO, Climate Change and the 2009 Bushfires: Prepared for the 2009 Victorian Bushfires Royal

Commission August 2009, exh. 222 EXP.006.001.00011, 8:3-10 2 Hennessy, T6753:3-9 3 CSIRO, above n.1, 34. 4 Haynes, WIT.3004.023.0011 [5.1.1] and [5.1.3] 5 Haynes WIT.3004.023.0011 [5.1.2] and [7] 6 Haynes WIT.3004.023.0011 [8]

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(e) Last fire season, CFA and DSE introduced the role of Area of Operations

Controller, who is appointed in advance of days of “severe” fire danger or above

to:

i. assume a quality assurance role;

ii. supervise timely warnings; and

iii. ensure that updated situation reports are provided to State Controller.9

(f) CFA, with DSE, also introduced the role of State Controller, to have ultimate

responsibility for setting the standards to which wildfires must be managed

across the State and ensuring the standards are met.10

(g) CFA has increased the number of qualified Level 3 incident controllers.11

(h) CFA and DSE have committed to upgrading Level 3 ICCs across Victoria, funded

by the Victorian Government.12

(i) A number of improvements have been made to CFA’s fire mapping capabilities

since 7 February.13

(j) The CFA will restructure its regions so that its 8 regions will be aligned in the

same geographical way as the police,14

(k) For the 2009/2010 fire season, CFA gave personnel in ICCs the capacity to

upload warnings to the CFA website, so delays caused by sending warnings to

the iECC for uploading are removed.15

7. The criticisms of Mr Rees urged by Counsel Assisting will do nothing to help the

trajectory of improvement continue, but will do a great deal to retard it, by dissuading

people from seeking or filling senior positions in the CFA (and DSE) for fear of being

subjected to similar criticisms when the next unprecedented catastrophe occurs.

7 Standard Operating Procedure – Incident Management Teams – Preparedness Arrangements, Ex.

547 CFA.001.032.0329. 8 Ibid [111]. 9 Haynes, WIT.3004.023.0011 [15] 10 Haynes, WIT.3004.023.0011 [15] 11 Haynes, WIT.3004.023.0011 [173], Haynes T12019:18-T12019:30, SUBM.500.001.001 [4.2]-[4.3] 12 Robertson, Ex 843 WIT.3003.001.0001, [86]; Haynes Ex 547, WIT.3004.023.0011, [200] ;

RESP.3000.006.0115 at note 1. 13 RESP.3000.006.0115 [2]. 14 Rees T19548:19-31 15 Haynes, WIT.3004.023.0011 [106]-[111].

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8. The Commission’s criticisms of Mr Rees are all the more unnecessary because Mr Rees

has acknowledged failures and welcomes change. As Mr Rees stated in evidence:

“One of the things that I've done all the way through here as chief officer is to

accept as chief officer - as Commissioner Pascoe said, as being the face of CFA

- that as an organisation we didn't do as well as what we would want to. One of

the reasons I say that is because we have to fight fire into the future. In

emergency management environments we need to trust each other and we need

to work together and believe in each other. We need to accept we're going to fail

from time to time. If I was to go out and say, "You over there did wrong and you

over there should be disciplined or sacked or whatever," I don't believe that's

conducive to the long-term future of our organisation. So I believe, whilst we

shouldn't be shying away from the fact as individuals we had shortcomings, that's

a lot different from saying, "You are to blame." “16

“the point that I'm trying to make is, first of all, people did their best and I

appreciate your comment. The point I'm trying to make is, given what they knew,

they tried their best. I made it clear I think last time I was here that some of the

warnings were not as early as what we would want. Some of our systems, I think

it is very clear, did not work as well as what we would want. There were clearly

some - I don't want to call them failures because people were trying, and failure

sort of means that they omitted deliberately, but there were some breakdowns in

the communication, particularly in relation to movement of warnings from one

physical location to the other, and the take-up of those. I think we need to accept

that and acknowledge that. As chief officer of CFA it is my responsibility to

recognise that and put in place systems of work. When we review this and we

see those breakdowns, clearly there is a responsibility for the organisation to

take that and understand it. We deeply regret it. It is not as if these people were

not trying their best, but we regret the fact that certain things did not go as well as

what we would want. We need to appreciate the extreme pressure that these

people were under, not just for the East Kilmore fire, but particularly for those in

the iECC”17

“Regarding approach on the day: Some of it is training. Some of it is sheer

volume and busyness. I mean, we often think in this calm room that we are sitting

in here that it is all calm and collected. The stresses of these people are

enormous and the workload is enormous. That's why I don't want to blame 16 Rees T19561- T19562 17 Rees T1843: 8-31

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people, because I believe they gave everything they possibly could. But we do

need to recognise that it didn't go in some instances as well as what we wanted it

to.” 18

“we had gone through a period of very hot weather, it had moderated a little bit

during the Sunday, Monday, Tuesday, started to build again in southern Victoria,

but in northern Victoria it had not got below I think 40 degrees the entire time,

and so I had this view that there was a fair degree of desensitisation to the risk of

high temperatures and bad days, and I was very concerned that we highlight this

day as being a very significant day, and I was worried that people were only

thinking of it being similar to the week before.”19

9. Counsel Assisting occupy a position of grave responsibility. They can, with the stroke of

a pen, destroy reputations and careers. They can urge findings which, whether justified

or not, will inflict damage on the individuals and on the morale of the organizations which

they serve.

10. In the interim report, at the urging of Counsel Assisting, the Commission criticized Mr

Rees. Now Counsel Assisting invite you to redouble that criticism. You should not

accept that invitation.

11. Professor Leonard said:

“…we tend to hold the senior commanders who are nominally in charge

responsible. We refer to this as the fundamental attribution error, in the

psychology literature. In other words, we as human beings, especially after the

fact, always prefer some relatively simple explanation for what happened in

complex events. The easiest one is that the leader, the person in nominal

authority, did a good or a not so good job, and we tend to over-attribute to him or

her both the success when things go well and the failure when things go badly.

Partly that just goes with the territory and it is a simplification device for the rest

of us, but we shouldn't lose sight of the fact that the burdens that we would in

effect actually be creating on a single individual are completely unsustainable in

a large, complex enterprise. He or she can't even know much of what is going on

in the enterprise. So, I think we need a more sophisticated understanding for

what actually generates good performance. In my view we should be less quick

18 Rees T1925:12 -20 19 Rees T2614:2-11

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either to provide great rewards or great opprobrium, depending on the outcome,

to people who are singled out as having been in command positions.”20

12. It is easy to look at the events of the day and criticise the way things went. The

Commission, and Counsel Assisting, have had many months to pick over a series of

events which played out with incredible speed. The Commission has been able to

examine, in comparative leisure, the performance of a system which came under

immense stress. Mr Rees made the point that 7 February was the busiest day of his

career.21 He started at 5:10 am with a phone call from Peter Baker22 and left the iECC

eventually at 22:00.23

13. Professor Leonard also said:

“When you put an organisation under stress, it does expose weaknesses and

difficulties. Often the things that you see not only are issues in an emergency but

are actually true in ordinary management as well. …What I think I would say is

that extreme emergencies are really a different animal. When we are beyond

what we have reasonably prepared for, when we are beyond the ability to

generate the kind of swift and effective response that we would all like to see, in

that setting we have to be able to operate differently. So what we are seeing is

not a weakness of the organisation as it would be in the routine space. What we are seeing is that it has not well-enough adapted its ability to deal with the extreme event. But we should also be careful not to have too high a standard for performance in extreme events, because they are intrinsically extremely difficult to manage in and to be successful in. So on the one hand

we need to avoid having too high a standard for performance. On the other hand

we should be able to look and ask, "Is this organisation able to become

appropriately improvisational and to take advantage of the decentralised assets

and capabilities that it has? If not, what can we do to improve its capacity to

operate in an effective and decentralised basis?" 24

(emphasis added)

14. This Commission can and should choose to avoid criticism of individuals, in the pursuit of

a greater objective, which is to help the fire-fighting organizations improve progressively

20 Leonard, T19005:29-19006:19 21 WIT.004.004.001 [1] 22 WIT.004.004.001 [2] 23 WIT.004.004.001 [54] 24 Leonard, T19026:30-19027:26

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as they battle the next, unprecedented fires whenever they might happen. It is significant

that the criticisms which Counsel Assisting urge the Commission to make against various

senior CFA and DSE officers are all in substantially the same terms. That fact involves a

tacit acknowledgement that the system failed, and that Counsel Assisting are searching

around for individuals to blame. It ignores the line of command issues and ignores the

responsibilities at the level of region command and area command. It is a damaging

approach to the Commission’s work which will achieve nothing in the task of

strengthening the fire services to face the next catastrophic fires, whenever they happen.

15. This Commission should reject the submissions of Counsel Assisting so far as those

submissions urge findings critical of identified individuals and specifically Mr Rees. This

Commission should choose to be constructive not destructive.

Misapplication of hindsight

16. The Commission has the opportunity to look back at our State’s response to a chaotic,

fast moving catastrophe with calm reflection and analyse how the CFA can deal with

future fires. Such is the benefit of hindsight; it enables the Commission to perceive the

requirements of 9 February more clearly than anyone could on the day, for the purpose of

considering constructive systemic changes for the present and future. But it is a

misapplication of hindsight to blame individuals such as Mr Rees for lacking a clarity of

perception only available to the Commission months after the event.

17. Professor Leonard said, without challenge:

“…. This is the challenge: inevitably after any major event we try to not come at it

with 20/20 hindsight, but nonetheless it is very hard to deny ourselves the

knowledge of what actually happened. It is very difficult to put ourselves back in

the position of the highly emotional and very difficult decision-making

environment and to remember what was actually known at the time and to judge

effectively the decisions that people made to the best of their ability as the event

unfolded. …. It always feels inevitable that it was going to turn out this way and it

always seems like it should have been obvious to the participants as it was going

along that it was going to turn out this way. Neither of those is true. History is not

inevitable, and the things that people knew at the time is very difficult to

reconstruct. ….”25

18. Counsel Assisting in their submissions have urged findings critical of Russell Rees and

senior members of the CFA, and findings critical of Ewan Waller and senior members of

25 Leonard, T19025:13-19026:3

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the DSE. Significantly, the findings urged against all of them are couched in substantially

identical terms. They use the following formula:

…Mr Russell Rees, failed to take the following actions and / or to ensure that the

State Coordinator or State Duty Officer of the CFA took the following actions:

a) Ensure that timely and accurate warnings were provided …

b) Ensure … that a clear and informative warning was provided …

c) Ensure that warnings … included a clear and informative warning as to the

potential consequences…

d) … ensure upon the commencement of the Kilmore East fire that a level 3

Incident Controller was in place at Kilmore ICC… “ etc.

19. The State Coordinator and State Duty Officer of the CFA are accused of failing to ensure

those various results.

20. To urge findings couched in this sort of language is to invite the Commission to ignore the

most essential features of the problem. In urging these findings, Counsel Assisting

ignore the following basic facts:

(a) Specific responsibility to issue warnings rests primarily with the ICCs. The

Regional Duty Officers and State Duty Officers can and did act as back up to

assist this responsibility;

(b) The ICCs are the principal source of information about the fire they are

managing;

(c) Facts which are known now were not known to everybody on 7 February;

(d) Facts which were known to one or more individuals at Kilmore ICC on 7 February

were not known to Russell Rees;

(e) The fact that full information did not get to Russell Rees on 7 February was not

something he knew on that day;

(f) Information breakdowns are a characteristic feature of any catastrophic event;

(g) The fact that there has been an information breakdown is not necessarily known

straight away by the person who needs to receive the information.

(h) The fact that there is an information breakdown is not the fault of the person who

needs to receive the information.; and

(i) On the day, Mr Rees did not know the Kilmore ICC was not functioning well.

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21. On 7 February, some important information did not make its way up the chain of

command to Mr Rees. In the circumstances of 7 February, congestion in

communications at the fire ground, where fire fighters are “looking out for each other and

responding to fires or parts of fires that are threatening people or property”26 meant there

may not have been timely situation reports about the location and development of the fire

up through the chain of command to the ICC. Witness Fabian Crowe summed it up this

way:

“If there are flaws or gaps in communications between the fire ground and the

Incident Control Centre, then there will be flaws or gaps in communications

between the Incident Control Centre and the Integrated Emergency Coordination

Centre.” 27

22. On Counsel Assisting’s own submission, the regional operation officer for region 12 did

not inform the State Duty Officer that he was aware of a discrepancy between the

number of available resources and the minimum number to resources required. 28 There

is no evidence that any State Duty Officer was approached by an IMT Co-Ordinator or

manager at a regional or Area level prior to 7 February to ask for help in resourcing

IMTs29. This bottleneck in the chain of command meant that Mr Rees did not know there

was a resources problem.

23. Similarly, whilst there is evidence of various individuals at ICC and fire ground level

forming the view that the Kilmore East ICC was not performing well, 30 there is no

evidence that Mr Rees was aware of this. As Mr Rees said in evidence, “We thought that

warnings were operating correctly. We now know they weren't.” 31 It is not open to the

Commission to find that Mr Rees failed to act on information in circumstances where he

did not have the information.

24. Beyond all this, the idea that a person in a senior position during a catastrophic crisis has

a duty to “ensure” a particular result is not only unfair, it is absurd. It is a counsel of

perfection which completely overlooks the nature of extreme events, and makes no

allowance whatever for the fact that even the best-designed systems can fail under

26 Statement of Crowe VPO.001.077.0319 [185] 27 Statement of Crowe VPO.001.077.0319 [185] 28 SUBM.500.001.001 [3.38] 29 SUBM.500.001.001 [3.39] 30 Ex 653, Holland WIT.3004.021.0209 [21], [83], [88]; Barca T3468:17-T3469:3 ;

RESP.3000.005.0300 [4.19]. 31 Rees,T19528:1-3

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unprecedented stress. It is unfair and unwise to suggest that a person has a duty to

ensure a particular result when:

(a) achievement of that result depends on the proper functioning of a system, and

Russell Rees was not responsible for the development of the system. It was a

joint agency effort sponsored by people from departments he was not in control

of;

(b) the system is failing because of extreme stress;

(c) the system failure includes information breakdowns; and

(d) the fact that the system is failing is itself not immediately apparent because of the

information breakdown.

25. The submissions of Counsel Assisting at paragraphs 15.2-15.5 proceed on the unstated

premise that all of the people identified had a duty to ensure a particular outcome:

namely that timely and accurate warnings were to be provided to communities, to ensure

that a clear and informative warning was provided on a statewide basis concerning the

south-westerly wind change, and so on.

26. The fact that a person did not perform a particular act is not the same as saying that they

failed to do it. The concept of “failure” in a legal setting involves a person being under a

duty to do a specific thing, in all the circumstances which prevailed and the facts which

were known to the person. The only proper basis for criticizing a person in the

circumstances of this Royal Commission would arise if the Royal Commission were

satisfied, on the Briginshaw standard, that:

(a) the person had information;

(b) that information, coupled with their job, obliged them to perform a particular act;

(c) failure to perform that act was, in all the circumstances, a reprehensible

dereliction of a specific duty; and

(d) nevertheless, and without excuse, the person failed to perform the act required of

them.

27. Nowhere do Counsel Assisting say that a specific person, armed with specific

information, had a duty to do a specific thing but failed to do it. The proposed findings

against Russell Rees do not satisfy that test.

28. First, it is notable that all the people referred to in paragraphs 15.2-15.5 occupy different

positions with different responsibilities in different organizations. But it is suggested by

Counsel Assisting that they all had a duty to do the same thing.

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29. Second, none of the proposed findings identify specific things which Mr Rees should

have done. Instead, Counsel Assisting invite findings that Mr Rees was obliged to

ensure specific outcomes or results.

30. Third, because the proposed findings are directed to outcomes rather than actions, they

sidestep the problem of hindsight.

31. It is trite to say that, on a day of catastrophic fires, it is desirable that timely, accurate,

informative warnings should be received by everyone affected. It is a completely different

thing to say that Mr Rees came under an obligation, at some indeterminate time on the

7th February, to ensure that other people in the organization had been performing their

jobs and that the warnings had been issued.

32. It is not possible for this Royal Commission to reach a conclusion, on the Briginshaw

standard, fixing Mr Rees with specific knowledge which could sensibly oblige him to

double-check the work which others in the organization would ordinarily perform. Mr

Rees had to maintain an overview of 47 major fires, not just the Kilmore East fire.32 If he

were to try checking on each ICC in order to satisfy himself that those below him were

performing their tasks properly, and if he could perform that check in just 15 minutes per

ICC, the task of checking on all 47 fires would take nearly 12 hours. In short, if Mr Rees

was not entitled to rely on the information which was coming to him, then he would not be

able to do anything at all during the day beyond double-checking others. To criticise him

for not adopting that path is absurd. To criticise him for not adopting that path in relation

to Kilmore alone, while practicable, involves the perfect vision of hindsight.

Particular findings urged by Counsel Assisting

Warnings: general propositions

33. In paragraphs 15.2 (a)-(c), Counsel Assisting urge findings adverse to Mr Rees that he

failed to ensure various warnings were given. What they urge are findings that he failed

to:

a) Ensure that timely and accurate warnings were provided to communities in the

path of or potentially in the path of the major fires;

b) Ensure on 7 February 2009 that a clear and informative warning was provided on

a state-wide basis concerning the impact of the south-westerly wind change on

fire behaviour; and

32 Rees T2406:16.

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c) Ensure that warnings concerning each of the major fires included a clear and

informative warning as to the potential consequences of the south-westerly wind

change on those fires.

34. The suggested findings ignore the evidence:

that the Kilmore East fire ran much faster than any predictive map had indicated33;

the southwest wind change came through earlier and at a faster rate than had been

expected, particularly in central and eastern Victoria;

that Mr Rees had to maintain an overview of 47 major fires, not just the Kilmore East

fire34;

that information about the Kilmore East fire was slow to come up from the Kilmore

East ICC;

that the perception of Kangaroo Ground ICC was that a warning was needed, but

that information did not make its way either to the Kilmore ICC or to the iECC.

35. There were many warnings about all of the fires including Kilmore East: on the CFA

website, on ABC 774 radio and on 3AW, throughout the entire day. 35 If Mr Rees had a

responsibility to check whether warnings were adequate, timely and suitably clear, he

would have had to check all the warnings for all of the fires in all of the media. It is only

hindsight which picks out the website as not carrying the explicit warning which had been

approved at 18:09. Counsel Assisting put it to Mr Rees on 5 May that one of the ways to

check that warnings were adequate was to look at the CFA website.36 But that was only

one way messages were going out and would not necessarily have given a proper picture

of the warnings which were going out. It is only the benefit of hindsight which singles out

Kilmore East as one fire where, potentially, additional warnings may have made a

difference.

36. It is unreasonable and unjust to blame Mr Rees for the fact that that information was not

disseminated in a timely way in accordance with the system. It is a good illustration of

Counsel Assisting’s willingness to blame Mr Rees not because he did something wrong,

but simply because things went wrong. It is also a classic example of blaming a person

with the benefit of hindsight.

33 Rees T2405:14-23 34 Rees T2406:16 35 Summary of Fire Location, Web and Radio Warnings for Kilmore East Fire, Ex 79, CFA.001.016.001. 36 Rees T19568:30 - T19569:1

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37. There is no evidence at all to suggest that Mr Rees was informed that the system by

which warnings were disseminated from ICCs had broken down.

38. Mr Rees agreed on the day that a warning about the southwest wind change was

desirable. At 6.08 pm he signed off on a warning to go on the website. For reasons

which Counsel Assisting did not fully explore, someone decided not to upload that

message. There is no suggestion that Mr Rees knew at any relevant time that his

decision to upload that warning message had been thwarted by someone else’s decision;

39. Sarah Henshaw noted in her log at 17:49 hours that Russell Rees and Ewan Waller

advised that a wind change had the potential in south and eastern Victoria to impact

multiple spot fires and they needed to get some information out to the public about the

wind change. Ms Henshaw drafted a web article which Russell Rees approved, but she

was not sure whether message was issued. Ms Henshaw was asked:

“At this time, at 17:49, Mr Conway informed you that firstly he’d had that

discussion with Mr Rees and Mr Waller, and the fires were such with the wind

change, no one could predict where they would go, and asked that something be

done. So what was done?---The initial discussion was to put together a web

article, it wouldn’t use the fire information release template, and I had actually

drafted one and taken a couple of versions of that to our chief officer for sign-off,

made some minor amendments to that. Then I actually had a discussion with the

information unit leader when I was asking her to take it to her chief officer for

sign-off, but perhaps putting another article up on the website was maybe not the

best course of action and that it might actually lose its importance, given the

nature of the information that was already up there, and the amount of

information that was already up there, and the decision was made that rather

than publish it as a web article, we would have our media officers draft a media

release to send out as an urgent media release.”37

40. There is no suggestion that Mr Rees had any part in the decision not to upload the

warning. On the contrary, he is the only person who plainly did what he had to do in

order to have the warning uploaded to the website. Furthermore, Counsel Assisting have

minimised the fact that a warning was faxed to the ABC at 16:10 regarding the risk to

Kinglake but that, for some reason, it was not read out by the ABC announcer.38

41. The criticism of Mr Rees concerning warnings overlooks a number of things:

(a) There was a system in place for production and dissemination of warnings; 37 Henshaw, T4784:27-4785:14 38 Stayner T1826 – 1827 and T1834-1835

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(b) Primary responsibility for warnings concerning a particular fire rested with the

Information Unit at the ICC which was running the fire;

(c) Information about fires would go from the ICC to the Information Unit at the iECC;

(d) Mr Rees had no way of knowing that the flow of information from Kilmore East

ICC was not adequate;

(e) Mr Rees had no way of knowing that the warnings about the Kilmore East fire

were not a sufficient warning in light of the facts as they existed, because Kilmore

ICC was the source of information about the fire;

(f) There were several steps in the chain of command between Mr Rees and the

ICCs, including, most importantly, the RECC; and

(g) If Mr Rees had thought, during 7 February, that he should check that sufficient

warnings were being disseminated, he would have had to:

i. Check with all ICCs the up to date position of all the fires;

ii. Check all the warnings concerning all the fires; and

iii. Assess whether those warnings were adequate, given the facts.

42. It is only by use of hindsight that Kilmore East can be singled out as one fire which Mr

Rees should have checked, because it is only by use of hindsight that it can be seen that

the system had broken down in connection with that fire, due partly to a problem with the

telephone system at the Kilmore East ICC. Mr Creak and Mr Murphy explained the

problem with the phone system at Kilmore ICC: the rotary capability of the telephone

system was not functioning initially on 7 February.39 If hindsight is excluded, then (on

Counsel Assisting’s standard of blame) Mr Rees would have had to check the facts of all

47 fires40, and the warnings associated with them. Presumably he would have had to do

this all day, as things developed. Furthermore, if Counsel Assisting are right, Mr Rees

should not have relied on reports from others: he would have had to speak to the Incident

Controller for each fire, and check all the messages on all media himself. The

impossibility of this is obvious.

43. Mr Rees’ evidence shows why it is wrong to single out Kilmore East for critical attention:

39 Statement of Creak, Ex 504, WIT.3004.021.0148 at [175]. 40 There were 47 fires of major concern that day: Rees T2406:16

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RESP.7513.001.0014

“The things that I will put down as doing well is we put out a lot of fires that could

have been absolute total disasters. We know that it was bad. We prepared for

the worst scenario that we could think of and we got worse than that.”41

44. The Commission has spent a year of intensive work, involving many people working

countless hours to reach the position where Counsel Assisting can identify the

breakdown in the system concerning warnings. Counsel Assisting suggest that Mr Rees

should have identified this problem and fixed it, within just a few hours. It would be a

classic example of the inappropriate use of hindsight to criticize Mr Rees for not taking

the steps urged by Counsel Assisting, when he did not have the information which might

have made such action appropriate.

45. In paragraph 2.43 of their submissions, Counsel Assisting say:

“When he appeared on 5 May 2010 Mr Rees suggested for the first time that

some aspect of the physical location of the Information Unit had in some way

affected the capacity of senior personnel to supervise its functioning. This

suggestion is a late invention …”

46. This is grossly unfair, and completely without foundation. Mr Rees offered this

explanation on 5 May 2010. As long ago as 27 April 2009, Sinclair Knight Merz produced

a report regarding the function of the iECC in which they analysed the impact of the

physical location of information unit on the functioning of the iECC. SKM stated:

“The majority of personnel interviewed [for the report] identified State Duty

Officers and the Situation Unit as the key focal areas of the iECC main room. The

majority of stakeholders interviewed noted that they need quick and easy access

to these two areas but due to lack of space for these areas they were difficult to

engage.”

47. Mr Rees was one of the people SKM interviewed for its report. Counsel assisting only

examined Mr Rees on one page of that report. 42 Furthermore, it was not put to Mr Rees

that his comment was “late invention”. In addition, Mr Graystone made the same point

about the location of the SDOs on 2 September 2009.43 He said it had been discussed

at the debrief, which took place within a week after 7 February.

Mr Rees’ missing map

41 Rees T19552:20-24 42 on 11 June 2009: Rees T2699:12-15 43 Graystone T6078:23 – 6079:28

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RESP.7513.001.0015

48. Counsel Assisting spend a deal of time discussing the map used by Mr Rees on 7

February, and lay great emphasis on the fact that it is now missing. In paragraph 8.30

they say:

“… That a document of such clear importance as the map used by the Chief Fire

Officer on 7 February 2009 is missing is extraordinary and unacceptable. The

importance of retaining a document which might be important in legal

proceedings must have been obvious to the CFA.”

49. This is a repetition of a criticism made in Counsel Assisting’s submissions before the

Interim Report. The implication is that someone in the CFA has deliberately got rid of the

map. The evidence of Ms Dunlop is clear: CFA had a policy for retention of documents;

she advised the CFA of the need to retain documents;44 CFA has produced over 1600

maps; two could not be found: one used by Mr Rees and one used by Mr Conway. Mr

Conway’s missing map has since been found. No sinister explanation has been

suggested to any witness. To say that it is “extraordinary and unacceptable” that one

map out of 1600 is missing suggests a standard of clerical housekeeping which very few

organisations ever match.

Warnings: specific findings urged by Counsel Assisting

50. In relation to the proposed finding at 15.2(a), that Mr Rees failed to ensure that timely

and accurate warnings were provided to communities in the path of or potentially in the

path of the major fires:

(a) Mr Rees acknowledged that he took no direct action to check that warnings

were being issued to communities.45 On 7 February 2009, the system in place

was for warnings to be issued “from the bottom up”.46 Mr Rees also

acknowledged that a weakness in the systems of the iECC was the absence

of a quality assurance mechanism to ensure, amongst other things, that

warnings had been issued.47

(b) In accordance with the roles of personnel in the iECC on 7 February 2009, Mr

Rees considered it a matter for the State Coordinator and State Duty Officer to

follow through.48 In particular “these matters would have been dealt with

44 T 8051:19 – 8053:11 45 Rees T19514:27 – T19514:28. 46 Rees T19527:13. 47 Rees T19352:16 – T19532:20, T19556:23 – T19556:31. 48 Rees T19514:28 - T19514:31.

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through the processes of the iECC and the information unit and the duty

officers”.49

(c) In fulfilment of his duties, the State Coordinator reported to Mr Rees on

matters of significance throughout the day: they had “many discussions on the

afternoon”.50 We submit that, as observed by Mr Rees “it needs to be

understood the degree of busyness that happened on that day and the

absolute volume that was being passed in terms of that information to the

public.”51

(d) Mr Conway and Ms Henshaw gave evidence of a meeting held at

approximately 2.30pm regarding the priorities for the information unit arising

from the fires burning at that time. Mr Conway stated that following that

meeting,

“I had a conversation with the chief officer generally about my current

understanding of where the fires were going, what I saw as the priorities

at that time. There was a consensus between myself and the chief officer

of the assessment and certainly he had a consistent view with myself

about what the issues and the potential was at the time”.52

51. In relation to the proposed finding at 15.2(b), that Mr Rees failed to ensure on 7

February 2009 that a clear and informative warning was provided on a state-wide basis

concerning the impact of the southwesterly wind change on fire behaviour.

(a) It was Mr Rees' evidence that he monitored the progress of the wind change

throughout the day, including receiving information from South Australia.53 Mr

Rees became progressively concerned about the acceleration of the wind

change throughout the day54and sought to make information known in respect

of the wind change.55

(b) Mark Williams, Regional Director of the Victorian Regional Office of the

Bureau of Meteorology, gave evidence that on 7 February 2009, the south-

westerly wind change “accelerated greatly” and “doubled in speed in Western

49 Rees T19527:28 – T19527:31. 50 Rees T19512:26 – T19512:27. 51 Rees T2392:23 – T2392:26. 52 Conway, T6181:11 – T6181:17. 53 Rees, Ex 75 WIT.004.004.0001 [10] 54 Rees T2694:28 – T2694:29. 55 Rees T2695:1 –T2695:3.

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Victoria”.56 For example, while the 16:30 wind change chart had the change

moving through the Kilmore area at 20:00, and Marysville sometime after

20:00; the 18:30 chart had estimated that at around 18:00, the wind change

was about to move through Kilmore and through Marysville at around 21:00.57

The fact that the change was moving more rapidly than indicated on forecast

charts was conveyed to staff in the iECC:58

(c) Between 16:00 and 16:45, it became apparent that over the central areas of

Victoria, the change had begun to surge northwards faster than previous

forecasts. At 16:50, Scott Williams approached the State Duty Officer, and the

fire behaviour analysts to indicate that the change should arrive at the

Whittlesea area between 18:30 and 19:00 and at the Churchill fires between

17:30 and 18:00.59

(d) In response to this new information, messages were prepared to be provided

to fire-fighters and to the community.

(e) At 17:25 on 7 February , a message was posted to IMS advising that the wind

change had “hit Melbourne” and that “ iECC advice to all IMTs is to consider

crews working on the north eastern flank, due to the amount of southerly

aspect in the change. Chief Officer advises that crew safety is of primary

concern.”60

(f) Between 17:30 and 17:40, Mr Rees and Mr Waller asked that a warning be

published on the web page “telling the community that the wind change was

coming earlier than expected”.61 Mr Rees’ concern to have a message issued

arose from the change in forecast conditions, that the “wind was acting

abnormally”.62

(g) The Chief Officer's request was conveyed to the Information Unit.63 Ultimately,

no information was issued about the changed wind change information.64

56 Williams, T761:26 – T731:28. 57 Williams, T765:9 – T76:9. 58 Williams, T 762:1 – T762:4, Ex 22 Meterological Aspects of the 7 February 2009 Victorian Fires – An

Overview WIT.013.001.0012 at 0073 -0074, 0231, 0233 59 Ex 22 Meterological Aspects of the 7 February 2009 Victorian Fires – An Overview WIT.013.001.0012

at 0074. 60 Ex 338, Supplementary Witness Statement of Peter Creak, WIT.3004.017.0001 [121]. 61 Rees T19509:2 – T19509:3 62 Rees T19560:3 – T19560:5. 63 Statement of Sarah Henshaw, WIT.3004.009.0110 [65].

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(h) As discussed, the process for issuing warnings to the community, and the

information provided in those warnings has been revised.

52. In relation to the proposed finding at 15.2(c), that Mr Rees failed to ensure that

warnings concerning each of the major fires included a clear and informative warning as

to the potential consequences of the south-westerly wind change on those fires.

(a) Mr Rees gave evidence as to his expectation that warnings would, as a matter

of course, include information about the wind change.65 Mr Rees

acknowledged that all warnings on the day were not adequate, and expressed

regret for that.66

(b) On 7 February 2009, pursuant to the Country Fire Authority Act, it was the

general duty of the CFA to take “steps for the prevention and suppression of

fires and for the protection of life and property in case of fire”.67 The

development of warning messages was not a duty that fell to Mr Rees under

the Act.68

(c) The Emergency Management Joint Public Information Committee (EMJPIC)

has the primary responsibility of ensuring that public information is co-

ordinated and distributed in a timely and accurate manner to inform and

advise community members during an emergency.69 Furthermore, “EMJPIC is

concerned with the consistency of public information being issued by all

agencies as well as the incorporation of any wider considerations into the

message.”70

(d) The CFA Chief Officer now has a statutory duty “issue warnings and provide

information to the community in relation to bushfires in Victoria for the purpose

of protecting life and property”.71

(e) The process for issuing warnings to the community, and the information

provided in those warnings, has been revised. Warning message templates

64 Henshaw, T4786:3 – T4786:8. 65 Rees T19510:13 – T19510:18. 66 Rees T1843:12 – T1843:29, T19527:18 – T19527:21 67 Country Fire Authority Act 1958, section 20. 68 Mr Rees stated that the development of messaging between CFA and DSE was run by community

safety parts of CFA: Rees T19554:31 – T19555:3. 69 Ex 963, Statement of McNeill, WIT.3010.0100.0134 [11]. 70 Ex 963, Statement of McNeill, WIT.3010.0100.0134 [21]. 71 Country Fire Authority Act 1958, section 50B.

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now include information to communities regarding the impact of a wind

change.

Preparedness of Kilmore ICC

53. Paragraph 15.2 (d) of Counsel Assisting’s submission urges a finding that Mr Rees

failed:

“Consistent with the assurance given to the Minister for Police and Emergency

Services on 5 February 2009, ensure upon the commencement of the Kilmore

East fire that a level 3 Incident Controller was in place at Kilmore ICC with an

appropriately resourced and qualified level 3 IMT, particularly in circumstances

where the Chief Officer was aware that a level 3 Incident Controller was not in

place soon after commencement of the fire.”

54. CFA and DSE took steps to prepare for the forecast conditions on 7 February. The

Commission has heard evidence from across the State that the level of preparation

exceeded any level of preparation that had been taken before.72 The preparations taken

at a State level are set out in the State's Submission on the Kilmore East fire.73

55. Mr Rees had directed the relevant CFA line managers to ensure the Kilmore ICC was

ready to go. Mr Rees told the appropriate people in the chain of command to ensure

the ICCs were ready, and he was told the ICCs would be ready. He was later told that

Kilmore ICC was level 3 ready. He should not be blamed for the fact that it was not ready.

56. In meetings held in the week leading up to 7 February, Mr Rees had outlined his

expectation that people were to be prepared for the day and reaffirmed his direction that

people were to be at a heightened state of preparedness in the week leading up to 7

February 2009.74 On Thursday 5 February, Mr Rees had given instructions in a

teleconference that ICCs should be ready for a “hot” start.75 At approximately 11 am on

5 February, Mr Rees had attended a teleconference with CFA Operations Managers, the

State Coordinator and State Duty Officers, in which they discussed preparedness

arrangements for the weekend, including having sufficient personnel to staff the RECCs

and IMTs within the ICCs.76 At approximately 15:30 on 6 February, Mr Rees met with

72 Creak, Ex 504, WIT.3004.021.0148 [52]; Creak T9301:17. 73 Submission of the State of Victoria, RESP.3000.005.0181 [19]-[75]. 74 Statement of Gregory Paterson, WIT.3004.010.002 [17]. 75 Rees T2415:5-T2415:27 76 Statement of Geoffrey Conway, WIT.3004.011.023 para [21] ; .

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RESP.7513.001.0020

Deputy Chief Officers and Mr Conway, State Coordinator, in a meeting in which they

discussed the level of preparedness and the number of personnel available.77

57. Acting on Mr Rees’ direction, on the morning of 7 February, Gregg Paterson (State Duty

Officer) asked Michelle Koehler (CFA State Emergency Coordination Centre Officer) to

contact the Regional Duty Offices and Area Coordinators to check that ICCs were ready.

Ms Koehler spoke with each of the Regional Duty Officers and/or Area Coordinators

about the ICCs and then prepared tables setting-out, among other things, ICC

preparedness. Mr Paterson believed from Ms Koehler’s work that Kilmore was a hot

level 3 ICC and had no reason to question that was not the case.78

“Just going back one step, have you ascertained why it is that you were

informed that the Kilmore ICC was hot, ready to run, when it wasn't?---No, I

haven't. As I said, I detailed a SECC officer to do that level of preparedness

understanding for me in the morning. As far as I was concerned, I had a

spreadsheet that showed me the status of the ICCs right across the State, the

status of the RECCs right across the State and the status of the municipal

emergency coordination centres across the State.”79

58. Similarly, Geoff Conway (State Coordinator) saw no indication from the region that they

were having difficulty building their IMTs and he assumed they were taking the necessary

steps to build the teams they needed. 80

59. Mr Rees gave evidence as follows:

“This is a matter for both CFA and DSE, not just CFA region 12. There are a

range of incident controllers in region 12, both volunteer and CFA career and

DSE people, and there are a range of people both at DSE Alexandra and DSE

Broadford and a range of volunteers and career staff at Seymour. It is my view

that there is capacity for some readiness levels to be attained in those locations.

The dilemma I had was I believed that was being achieved or, as I said in my

evidence, if they weren't there physically to any great extent, they were very

quickly capable of being there.”81

60. Before 7 February 2009, nobody had told Mr Rees that, despite his direction that ICCs

should be ready to go, the Kilmore East ICC was not “hot”. On 7 February, Mr Rees

77 Statement of Geoffrey Conway, WIT.3004.011.023, para [30]. 78 Statement of Gregory Paterson, WIT.3004.010.002 [26], [28]-[29]. Paterson T4261 :12 – T4262 :3 79 Paterson, T4272:30 - T4273:7 80 Conway T6186:9-20 81 Rees T19515:20-30

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found out, in the early stages of the Kilmore East fire, that Mr Murphy was the Incident

Controller at the Kilmore ICC, and he knew Murphy was a level 2. Of itself, this was not

an alarming piece of information. Although ideally the CFA would want level 3 people in

all the posts at a Level 3 ICC, “you don’t have that luxury”.82 Aside from knowledge of

this fact, Mr Rees did not know on 7 February that the Kilmore ICC was under-prepared.

When Mr Rees was informed that Mr Murphy was the incident controller for the Kilmore

East fire83 he knew that Stewart Kreltszheim (a level 3) was coming in to replace him.84

There was no reason to hasten Mr Murphy’s departure at that point.

61. Mr Rees did all he could to ensure that incident management arrangements had been

established. To suggest that he should have gone behind the reports he was given to

check the accuracy of the report he received would be utterly incompatible with proper

leadership. It is unreasonable to suggest that Mr Rees should have doubted the

accuracy of the report he received concerning the readiness of various ICCs, including

Kilmore. If Counsel Assisting’s submission is to be accepted on this point, it must follow

that Mr Rees should have checked personally the actual state of readiness of every ICC

across the State, because it is only the benefit of hindsight which makes it relevant to

know that Kilmore was not level 3 ready. That would have involved him in personally

contacting every ICC or in some other way double checking the work of competent staff

whose task it was to report to him. The criticism also involves the unstated assumption

that the course of the fire might have been different if a level 3 controller had been

available and on duty at Kilmore that day, which is simply not an available finding.

62. The problem of Kilmore ICC’s preparedness raises squarely the important evidence given

by Mr ‘t Hart:85

“Can I just suggest this to you. The decision to intervene and remove a local

commander would be a big judgment call, would it not?---Huge.

Amongst other things, the chief fire officer, if that was the person in the

hypothetical, would need to make sure that whatever steps he took were going to

improve the situation, not aggravate it?---Clearly.

And that in turn, can I suggest, would require that the chief fire officer was in

possession of reliable information so that he could make a judgment as to

whether that very dramatic step should be taken?---Yes. Here we are back at this

82 Rees T2416:10-28 83 Rees T2416:22-25 84 Rees T19520:23 – T19520:24. 85 t’Hart, T19082:8-19083:11

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RESP.7513.001.0022

point that was also touched on in the testimony of Professor Leonard. How much

does the centre, the very centre or the very top, if you like, need to know and

how does it get to know what it needs to know in these sort of highly dynamic,

fast-moving circumstances? And, as I express in my paper, how comfortable is

the top with making these types of judgment calls in the absence of complete

information? You can appreciate that there are errors associated with both

phenomena. If you wait until you have a full picture, you might be too late in

intervening in a useful way. If you go too early and on incomplete information,

you might end up destroying a command structure that is actually working not so

bad at all. So this is a really - us academics can only describe, if you like, the

choice opportunities, the choice structures that people are likely to face.

Inevitably those judgment calls will be made by those individuals, but I think I

said in response to questions by Ms Doyle that this is what we pay our top

people for, to do. But it is also a type of intervention that you shouldn't take lightly because it casts a very long shadow in an organisation if you start removing a commander that you have previously entrusted to play a crucial operational command role.” (emphasis added)

63. Counsel Assisting called Mr ‘t Hart. They did not challenge his evidence. It is, in any

event, consistent with common sense. When Mr Rees learned that a level 2 Incident

Controller was in charge at Kilmore, he knew that a level 3 Incident Controller was due to

take over later in the day.86 It would have been a “huge” call to decide to remove Mr

Murphy peremptorily during the first few hours of the fire, especially in circumstances

where he had no reason to believe that Mr Murphy was not handling the matter properly.

Statewide plan

64. Paragraph 15.2 (e) of Counsel Assisting’s submission urges a finding :

(that Mr Rees failed to) prepare or execute a state-wide plan (including in relation

to the resourcing of fires based on their predicted severity) for the response to

and suppression of the major fires which burned on 7 February 2009.

65. Mr Rees gave evidence that a statewide plan was prepared.87 He was not challenged. It

was not suggested to him that some other kind of plan was essential and that he had

failed to produce some kind of essential plan, or that the statewide plan he gave evidence

of was in some identified way inadequate.

86 Rees T19520:23 87 Rees T19253:13-T19255:12

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66. Mr Rees gave evidence that he did establish priorities on 7 February for the purpose of

resources, aircraft, interstate support based on “those fires that were most impacting on

populated areas”.88 At around 5pm, Mr Rees and Mr Waller briefed the Chief

Commissioner of Police, Ms Nixon on the fires and particularly, the Kilmore East and

Churchill fires.89

67. In preparation for the forecast conditions on 7 February, Mr Rees had also requested that

regions prepare to be self-sufficient in the event that resources could not be allocated to

them.90

68. There is no basis for making the finding.

Inadequate use of information

69. Paragraph 15.2 (f) of Counsel Assisting’s submission urges a finding:

(that Mr Rees failed to) make adequate use (including in relation to resourcing

decisions and communication of warnings) of information which was available or

ought to have been obtained concerning the predicted path (including predictive

maps prepared both within the iECC and by Incident Management Teams) and

severity of the major fires which burned on 7 February 2009.

70. Even in “normal” conditions, as noted by Mr Haynes, operating in the iECC is:

“a bit like flying an aircraft on instruments, that you are relying on your

instruments and your gauges but you can't actually see the fire. So you are

relying on data coming in, IMS, FireWeb and a bit of gut instinct.”91

71. Mr Rees noted that the information received by the iECC was compromised, given the

extreme conditions of 7 February. In particular, there were limitations because of “the

sources that we would normally have from aircraft or mapping, the speed of the event,

the multiplicity of events created.”92 Despite these limitations, and the incomplete picture

available to personnel in the iECC, Mr Rees was able to prioritise the severity of the fires.

72. Mr Rees has already been unfairly criticised, in the Interim Report, for not heeding

predictive maps in circumstances where he did not know certain maps were being

prepared. The fire behaviour analysts at the iECC for some reason showed their

predictive maps to DSE but not to CFA.

88 Rees T19526:13 – T19526:28. 89 Nixon, T17335:4 – T17335:12. 90 Rees T2622:31-2623:31 91 Haynes, T6141:5 – T6141:9. 92 Rees T2422:18 – T2422:21

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73. Despite the fire prediction work occurring at Kilmore ICC, Kangaroo Ground ICC and the

iECC, no-one predicted the direction, spread or timing of spot fires from the Kilmore East

fire. Even the predictions of expert fire behaviour analysts in the iECC distributed at

about 16:30 on 7 February were not correct.93

74. Michael Sutton, from DSE, who was working in the Fire Behaviour Analysis Unit in the

iECC on 7 February, gave evidence about the predictive work done for the Kilmore East

fire on the day.94 Mr Sutton prepared a hand drawn predictive map that was initially

prepared at about 15:11.

75. At 16:42 on 7 February, Mr Sutton showed his predictive map of the Kilmore East fire to

Alen Slijepcevic and Ewan Waller of DSE, but did not show it to CFA staff. Mr Rees was

not aware that fire behaviour analysts were producing maps of the Kilmore East fire on 7

February.95 Mr Paterson, CFA State Duty Officer, was aware there were fire behaviour

analysts in the iECC on 7 February 2009, and these specialists provided a fire spread

prediction map for the Bunyip State Park fire as part of their presentation to the 0900

hours briefing. Mr Paterson was not aware, however, that they were producing any other

fire prediction maps during his shift on 7 February.96 Due to the extraordinary conditions

of the day, Gregg Paterson, State Duty Officer, did not have time to talk to the field about

basic fire prediction mapping, let alone more sophisticated fire mapping.97 The Situation

Unit Leader, David Nichols, gave evidence that he sought out the maps and that they

were provided to him. He is the key person to whom the maps should be provided, as he

works with the field to give and share information. The mapping is critical to the IMTs and

others, but not to the Chief Officer. David Nichols’ evidence shows how late the mapping

came to him.98

76. To criticize Mr Rees in the way urged by Counsel Assisting is wrong. It involves judging

his conduct by use of hindsight. As Counsel Assisting’s submission makes clear, they

invite criticism of Mr Rees for not using information “which was available or ought to have

been obtained concerning the predicted path … and severity of the major fires”. This

involves attributing to Mr Rees knowledge of the availability of that information, and in

particular the existence of predictive maps. The implication is that he should have asked

93 Map created Sat Feb 07 15:11:15 EST 2009 – Potential Spotting, Sutton (Attachment 9) Ex 122,

DSE.CD03.0001.0035.]. 94 Statement of Michael Sutton, Ex122, WIT.3024.001.0008, [61]-[81]; Sutton T4059:1-4095:2. 95 Rees T30:29-T31:5; T74:23-29. 96 Statement of Gregory Paterson, WIT.3004.010.0010 at [54] and T30:23 – T31:5. 97 Ibid at [46]-[47] 98 Nichols, T6602:22, T6607:19-30

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to see those maps. No doubt he could have asked for them if he had known of them. To

refer to them as “available” however imputes to him knowledge that they were available.

He did not know that they were available, and should not be criticised for not asking for

them.

77. At the highest, Counsel Assisting might criticise people for not bringing the maps to Mr

Rees’ attention, but even that approach is flawed. It is flawed, because predictive maps

for the Kilmore East fire were out of date before they were ready. The fire moved so fast

that, by the time the predictive maps were ready, they were already demonstrably wrong.

This is no criticism of those involved in predictive mapping: it is a reflection of the

incredible speed and volatility of the Kilmore East fire.

78. No one accurately predicted the course, timing and behaviour of the fire. The concept of

“the path of the fire” is based upon the erroneous view of the evidence that the “firefront”

travelled from Kilmore East through affected areas in a predictable course.99

79. The use of hindsight in this regard is very clear. Let it be supposed that Mr Rees had

been told of the predictive map prepared at 17:43. It was predicting the potential impact

of the Kilmore East fire on the basis of information available at 14:00, that is to say,

nearly 4 hours earlier. It was predicated on the SW wind change coming through at

23:00100 but the wind change had already arrived.

Inadequate supervision

80. In Paragraph 15.2 (g) of Counsel Assisting’s submission urges a finding:

(that Mr Rees failed to) adequately supervise the management of the Kilmore

East and Churchill fires by the Incident Management Teams responsible for

them, the shortcomings of which would have readily been ascertainable had Mr

Rees:

required the provision to him of Incident Action Plans for such fires;

required the provision to him of predictive maps for such fires; and

undertaken a check of the warnings issued to the public for such fires as

against the predictive maps.

81. The finding suggested by Counsel Assisting misconceives the role of IMTs, RECCs and

the iECC and the current position of IMTs, AOCs and the SCC. Counsel Assisting’s

submission seeks to apply a standard for the conduct of senior officers at the iECC that

99 See RESP.3000.005.0181 [153] 100 SUMM.035.002.0048

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ignores the structures and system in place at the time, and entirely overlooks the

existence of the Regional Command. Mr Rees was entitled to expect that Regional

Command would be monitoring the performance of individual ICCs. He said:

“An area manager or an area has a number of regions which is looked after by a

general manager, which is an amended title for what an area manager was when

I was originally appointed. An area manager looks after a range of functions of

CFA generally relating to the operations function, the community safety function,

the training function, the HR function and the finance and administrative function,

and underneath the general manager are a range of managers and for each of

the numbered regions there is an operations manager who is responsible for the

operational management of that geographical area, that numbered region.”101

and:

“I would expect some exchange that would go on between whoever is

responsible inside the RECC with the incident controller to say, "This is what is

happening. What are your issues?" If they for whatever reason were unable to do

it, then the RECC would step in and, as has been seen in a number of instances

here, the message actually emanated out of the coordination centre, the RECC,

rather than the ICC.”102

82. Apparently, what Counsel Assisting have in mind is that Mr Rees should have contacted

the Incident Management Teams, by way of supervision, and requested the things noted.

Mr Rees was asked about this. He said:

“I previously indicated I did not contact the incident control centres and that's not

the way that I would normally work.”103

“---It is not a question of it didn't occur and me being proactive. I was proactive in

searching out if there were any issues. I did not contact the ICC, because it

would be most abnormal for me to do so. I did not contact the region because I

know that from time to time it is appropriate for the duty officer or the State

Coordinator to do that and if they had an issue they would raise the matter with

me.”104

101 Rees T18:26 – T19:3 102 Rees T2501:14-21 103 Rees T19520:2-4 104 Rees T19521:27-31 19522:1-4

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83. Mr Conway and Mr Paterson did talk to the Region and did support and provide

assistance. This is how the system was supposed to work. They were not asked to

provide help to the IMT, nor were they told that things were not working properly.

84. The finding urged by Counsel Assisting ignores the fact that the system involved a flow of

information from the bottom up. To have Mr Rees contacting the ICCs and seeking

information has obvious practical difficulties. It would have consumed most of his time. It

necessarily involves the use of hindsight, because there would have to be a specific

reason for departing from the usual pattern of communication. That departure from the

usual pattern of communication would only be justified if Mr Rees believed on good

grounds that the system was not functioning, but he would not be alerted to the problem if

the problem was a failure of the information system itself.

85. More broadly this criticism, like the others, is couched in very general language. It does

not descend to particulars: it does not say that Mr Rees should have done specific things

at specific times. Little wonder: to do so would plainly expose the use of hindsight which

underlies the criticisms.

86. For example, let it be supposed that Counsel Assisting had urged a criticism of Mr Rees

that he failed to ring the Kilmore ICC in the middle of the afternoon on 7 February in order

to require the provision to him of an Incident Action Plan, and to require the provision to

him of predictive maps for the Kilmore East fire so that he could undertake a check of the

warnings issued to the public for such fires as against the predictive maps. The answer

to such a criticism would include:

His knowledge then was not the same as the Commission’s knowledge now; as a

result, he would have to make similar requests of every ICC. There were 47 major

fires. If he were able to make the calls, see the documents and assess the warnings

for each ICC in just 15 minutes, completing the process for every major fire would

have taken almost 12 hours. To limit the enquiry to Kilmore involves 20/20 hindsight.

Interfering with the ordinary operations of the ICCs by assuming a failure of the

normal communications would itself tend to affect the morale and operations of the

ICCs.

87. On notification of the extreme weather forecast for 7 February, Mr Rees undertook, and

directed CFA personnel to undertake, significant levels of preparation. The evidence

shows that there was a significant escalation of the preparations leading up to 7

February compared with previous fire seasons and previous large high consequence fire

events. These include:

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(a) full closure of many parks and the warnings not to visit forested areas or travel

unless really needed;

(b) the elevated level of preparedness by all fire agencies including bringing in of a

third air crane and the positioning of strike teams in high risk areas;

(c) the setting up of, and additional resourcing of, the iECC;

(d) moving of CFA central operations management to the iECC so that the two fire

agencies were collocated and working closely together;

(e) the longer lead time on the warning from the Bureau of Meteorology of a serious

fire weather day;

(f) the co-location of a Bureau of Meteorology experienced meteorologist for regular

analysis through out the day;

(g) regular and well attended planning and information sessions for all affected

agencies; and

(h) extensive press briefings with warnings prior to, during and after the 7

February.105

88. Mr Rees was involved in each of the above measures, and noted that:

There is no doubt that particularly from Wednesday onwards that we sought to

prepare as well as what we could and certainly put in place as best as what we

could a range of things that would normally be regarded as above the norm, you

know, for what was clearly going to be potentially a most severe day.106

89. In relation to the duties that Mr Rees identified as being part of his responsibility, the

evidence shows that he performed all of them:

(a) he directed, and oversaw the establishment of incident management

arrangements.107 Mr Rees' actions regarding preparedness are in evidence

before the Commission.108 Mr Rees sought, and was assured109 of the highest

105 Exhibit 6, Statement of Ewan Waller, WIT.002.002.0001 [296] 106 Rees T1852:7-T1852:16 107 The steps that the agencies took are set out the Submission of the State of Victoria – Overview,

RESP.300.005.0307 [4 – 9], and Submission of the State of Victoria on the Kilmore East fire (other than on cause) RESP.3000.005.0181 [46-50].

108 Ex 3, Statement of Rees, WIT.004.001.0001 [293 – 308]. 109 Rees T19515:20-30; Rees T2415:18-27; Creak T10856:15.

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levels of preparedness. On 7 February, Mr Rees sought, and was informed of

incident management arrangements for the Kilmore fire.110

(b) he put systems in place to ensure regional coordination was occurred through

the SDO, and was reported to him through the State Coordinator.

(c) Planning for resource deployment occurred prior to 7 February, allowing those

plans to be implemented on 7 February. Additional resources were acquired and

staged strategically to respond to the risk presented on the day.

(d) He gave evidence that part of the strategy for 7 February was to focus on heavy

initial attack to respond to the weather and fuel conditions, but also the extreme

heat on the day. Mr Rees said “we sought to in fact almost double the amount of

firefighters we put on the fire ground for any type of event so that we didn’t have

firefighters collapsing in the heat.”111

(e) On 7 February, Mr Rees reported to other agencies and government. He was

briefed throughout the day by the State Coordinator. He took advice from DPI

and DHS, briefed the Emergency Services Commissioner, the CEO of CFA , the

Chief Commissioner of Police, and the Minister for Police and Emergency

Services.112

90. In accordance with the systems in place as at 7 February, and in view of the significant

levels of preparation undertaken, Mr Rees was entitled to rely on the systems in place to

provide information to him. It would not have been appropriate for Mr Rees to interfere

with normal operations and the reporting structures in place at the iECC. To the extent

that shortcomings at the iECC have been identified, this can attributed to a failure of the

system to cope with an unprecedented, and unforeseen day.

91. If the real criticism of Mr Rees is that he didn't walk the floor to check, when there were

inbuilt systems in place to bring matters to his attention, that is a misguided criticism. It is

no proper part of leadership, especially in a crisis, to be double checking the work of

people further down the system, unless there is plain evidence of failure in the structure.

The approach urged by Leonard and ‘t Hart

92. The evidence of Professor Leonard and Mr ‘t Hart is very significant to the work of the

Commission, and underlines the important distinction between litigation and the work of

the Commission. In litigation, the ultimate objective is attribution of blame with 110 Rees T2416:13-31. 111 Rees T1853:2 - T1853:5. 112 Ex 75, Rees, WIT.004.001.0001.

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consequential adjudication of rights. In this Commission, the ultimate objective ought to

be ascertainment of ways in which response to extreme emergencies may be improved.

Because the Black Saturday fires were so extreme and unprecedented, it is to be

expected that the response was less than optimal. This is not only because no one can

prepare for something unforeseeably extreme, but because extreme events place

individuals and the system under stress which they have not encountered before.

Finding faults and short-comings would be easy, but pointless and damaging. A much

greater, but more important, challenge is to find ways of improving the system for the

future. This is the message of Professor Leonard and Mr ‘t Hart.

93. Professor Leonard is referred to in just one paragraph of the submissions of Counsel

Assisting.113 This does less than justice to the importance of his evidence. He told the

Commission:

“any really extreme event, and black Saturday certainly qualifies as an extreme

event, is going to be messy no matter what form of organisational structure we

have, no matter how much preparation we have. That's what makes it

extreme.”114

.- - -

“…decentralised adaptive responses that are most likely to be effective. That

doesn't stop commentators from looking at the situation in an extreme event and

saying, "Boy, this is really a mess. Why isn't there anybody in charge? Why isn't

there someone who can tell us what we should be doing and direct us and really

take command and clean this up?" I think the fantasy of that ideal is the enemy of

good practice because it tends to suggest that the only direction for more

effective practice is a higher level of centralisation and centralised command. I

think that's actually wrong in large scale events. It works in small scale events.

But the problem is in that commentary we are effectively treating extreme events

as if they were simply somewhat larger routine events, and I think that is a

fundamental mistake...”115

.- - -

“…we tend to hold the senior commanders who are nominally in charge

responsible. We refer to this as the fundamental attribution error, in the

psychology literature. In other words, we as human beings, especially after the 113 SUBM.1000.001.001 at [1.29]. 114 Leonard T18975:1-5 115 Leonard T18975:14-29

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fact, always prefer some relatively simple explanation for what happened in

complex events. The easiest one is that the leader, the person in nominal

authority, did a good or a not so good job, and we tend to over-attribute to him or

her both the success when things go well and the failure when things go badly.

Partly that just goes with the territory and it is a simplification device for the rest

of us, but we shouldn't lose sight of the fact that the burdens that we would in

effect actually be creating on a single individual are completely unsustainable in

a large, complex enterprise. He or she can't even know much of what is going on

in the enterprise. So, I think we need a more sophisticated understanding for

what actually generates good performance. In my view we should be less quick

either to provide great rewards or great opprobrium, depending on the outcome,

to people who are singled out as having been in command positions.”116

94. As noted above, Professor Leonard cautioned about the dangers of using hindsight

when judging after the event:

“Wisdom and restraint would always, it seems to me, be a good thing. Yes, I

think that's right. This is the challenge: inevitably after any major event we try to

not come at it with 20/20 hindsight, but nonetheless it is very hard to deny

ourselves the knowledge of what actually happened. It is very difficult to put

ourselves back in the position of the highly emotional and very difficult decision-

making environment and to remember what was actually known at the time and

to judge effectively the decisions that people made to the best of their ability as

the event unfolded. I think it is important after the fact to make sure that we don't

commit the error of 20/20 hindsight. So there are really two related ideas here.

One is that we shouldn't imagine the clarity of history after the fact. It always feels

inevitable that it was going to turn out this way and it always seems like it should

have been obvious to the participants as it was going along that it was going to

turn out this way. Neither of those is true. History is not inevitable, and the things

that people knew at the time is very difficult to reconstruct. So I think it is very

important not to judge too harshly. Also, it is fine that we celebrate successes,

but we should be careful to distribute the celebration because there are a lot of

people who contribute to the success in these events.”117

Conclusion

116 Leonard T19005:29-19006:19 117 Leonard T19025:13-19026:6

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95. The fires were catastrophic. They might have been much worse. There is a natural

focus on the Kilmore East fire and the Murrindindi fire. This focus overlooks other fires

which had similarly terrible potential. It would be a grave injustice to blame, after the

event, individuals who did their conscientious best to deal with an unprecedented

disaster.

96. The Commission’s report has the potential to provide a blueprint for development and

continued improvement of bushfire management in Victoria. It will fail in that task if it

singles out any individual for blame. None of the findings against Mr Rees, urged by

Counsel Assisting, suggests that there was a specific thing which he clearly ought to

have known about but which he ignored. They do not suggest his knowledge at the time

of particular facts imposed on him an obligation to take particular steps which he

knowingly failed to take. Only matters of that order would justify the sort of findings

Counsel Assisting have urged. Absent such matters, criticism of individuals of the kind

urged by Counsel Assisting will do nothing more than destroy reputations, damage

institutional morale and diminish the Commission’s Final Report ability to make Victoria

safer.

J.WK. Burnside

Georgina Costello

Counsel for Russell Rees

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