introduction

1.         In February 2009 the whole of south‑east Australia was experiencing a severe and protracted drought — a drought without precedent.1 During January 2009 many locations in Victoria experienced no rain at all. Most other locations were at near record lows.² The drought continues.3

2.         In late January 2009 exceptional heatwave conditions developed across Victoria, the most severe and prolonged in the history of south‑east Australia.4 On 7 February many all-time temperature records were set. In Melbourne the temperature reached 46.4°C. The previous record was 45.6°C, set on Black Friday, 13 January 1939.5 The duration of the heatwave was exceptional, with Melbourne setting a record for the most consecutive days above 43°C (three days).6

3.         The countryside was parched. The heat and drought desiccated the vegetation of the forest floor.7 The fuel loads were extremely high.8 Those responsible for managing and fighting fires in Victoria compared the conditions with 1939 — prior to 7 February 2009 the most catastrophic bushfire season in Victorian history. They held a foreboding. There was an understanding that the landscape of Victoria was predisposed to ‘a catastrophic event’.9

4.         This dreadful expectation was matched by the calamity that descended on parts of Victoria on 7 February. The fires were ‘so extreme, so feral, so catastrophic, so devastating’.10 The Chairperson of the 2009 Victorian Bushfires Royal Commission (the Commission), Bernard Teague, used these words to attempt to convey the sheer brutality of the impact of the fires, yet in a way they do not. Those who fought the fires, strived to save their homes, witnessed the force of fire after taking shelter, or were in communication with loved ones, now deceased, have provided more than words to the Commission. They have given a personal and emotional content to the evidence that has helped the Commission understand the nature of these terrible fires and the almost overwhelming loss that followed.

5.         Long-serving Country Fire Authority (CFA) officers had not experienced such fires. The speed, the roar, the wind and the spotting were exceptional.11 The fires enveloped everything in their path: ‘it just came at people from — yes, they didn’t have a chance’.12 The rate of spread of the fires equalled the maximum previously recorded, and the prolific spotting made fire behaviour on the day unique. The flames leapt 100 metres into the air, generating heat so intense that aluminium road signs melted.13 The plume of the fires created a convection effect that generated winds so strong that trees appeared to be screwed from the ground.14 Tree trunks snapped because of the ferocity of wind.15

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6.         One hundred and seventy three people died in these fires — one of the greatest peacetime tragedies in Australia’s history. The personal cost cannot be over-estimated. We have glimpsed the ruin and observed the raw emotions of those left behind. Whilst physical recovery is underway, many of the losses sustained can never be healed, and recovery will never be complete.16

7.         It is against this background that the Commission was established and three Commissioners were appointed and required to produce an interim report by 17 August 2009 and a final report by 31 July 2010 (Box 1).

 

         The Hon Bernard Teague AO, Chairperson, retired from the Supreme Court in 2008 after serving
20 years on the bench, the last six as Principal Judge of the Criminal Division. He was the first practising solicitor appointed as a judge of the Court in 1987. As a solicitor he specialised in libel cases. As a judge
he presided over more than 90 murder trials. He has also chaired the Adult Parole Board. He was made
an Officer of the Order of Australia on Australia Day in 2009.

        
Mr Ron McLeod AM led the inquiry into the operational response to the 2003 ACT bushfires. He has been a career official in the Australian Public Service since 1958. He was a Senior Executive in the Public Service Board for many years before serving as a Deputy Secretary in the Department of Defence for 12 years. Mr McLeod has more recently been the Commonwealth and Defence Force Ombudsman, as well as the ACT Ombudsman.

        
Ms Susan Pascoe AM has been a full-time Commissioner with the Victorian State Services Authority
since September 2006 and chaired a number of Government inquiries. She was formerly Chief Executive
of the Catholic Education Commission of Victoria, Chief Executive of the Victorian Curriculum and Assessment Authority, President of the Australian College of Education and Chair of the Australian National Commission for UNESCO. Ms Pascoe has contributed to state, national and international efforts to improve the quality and equity of education.

 

8.         The scale of the tragedy of 7 February warranted the establishment of an independent body to ascertain what happened and to determine, as far as is possible, what needs to be done to reduce the likelihood
of such loss of life again. A Royal Commission is well suited to undertaking such a task. For the purposes of the interim report, a short description of the nature of such a Commission is set out.

9.         A Royal Commission is an administrative inquiry established by Executive Government and is a mechanism by which Executive Government obtains information. 17  The Commission is directed to inquire into and report on the fires that burned in late January and February 2009, and recommend on policies for preparation and response to bushfire. (The Commission’s terms of reference are at pages VI–IX of this report.)

10.       While a Royal Commission reports to the Executive Government, by long tradition it operates independently. A Royal Commission is a valuable mechanism by which the circumstances of the involvement of government or government agencies in an event like the 7 February bushfires can be thoroughly examined in a public setting.

11.       A Royal Commission has broad investigative powers. Its proceedings are generally inquisitorial and it is not subject to the strict rules of evidence that apply to a court of law. In this way, a Royal Commission is suited to uncovering facts that may not otherwise be discovered. Unlike a court of law, a Royal Commission is not under a duty to reach definitive conclusions. It has a legal duty to report and the report is limited to explaining what the Commission has done, what conclusions were drawn from its investigations and what advice it should give the Executive Government based on its deliberations.18

12.       When witnesses give evidence during the hearings of the Commission, that evidence is led and tested by Counsel Assisting. Counsel Assisting exercises the function of managing the investigations of the Commission, of reviewing the material that is generated by those investigations and of determining the evidence that should be led in public hearings. Part of the function of Counsel Assisting is to test the evidence that is given, even if that is an uncomfortable experience for witnesses concerned. It is important that this process be undertaken so that the Commission can be confident it can rely on the evidence placed before it.

13.       Ultimately, the three Commissioners must decide what conclusions are drawn from the evidence that is called. It is the role of Counsel Assisting to undertake the detailed investigation work of the Commission, to ensure that any person who may be affected by the Commission’s findings may be confident that the Commissioners have approached the hearings with open minds.

14.       In evaluating the evidence, while not bound by the legal system’s rules of evidence, the Commission has been mindful of those rules, for they represent the means worked out by the courts over many years for identifying the kinds of material that can safely be relied on.19 The Commission is therefore confident that
the conclusions reached in this interim report are based substantially on material that would be admissible in a court of law. That evidence consists primarily of sworn evidence given during the Commission’s hearings and documents that have been tendered.

15.       As the work of the Commission continues, and its focus shifts from investigating the events of 7 February
to the question of reform, some different methods for obtaining relevant information will be employed to ensure an efficient use of time. In so doing, the Commission will continue to be mindful of the rights of individuals and the need to have regard to natural justice and procedural fairness. Details of these other methods will be available in due course.

 

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16.       From the outset, the Commission took the view that its work should be accessible to individuals and communities directly affected by the fires, to the broader Victorian and Australian community, and to those from the international community with an interest in its work.

17.       The Commissioners made it their first priority to listen in their local communities to people affected by the fires. These powerful sessions provided a human backdrop to the Commission’s deliberations and helped the Commissioners identify themes and priorities for their work. In addition, witnesses with direct experience of the fires have appeared formally before the Commission to tell of their experience and to provide opinions. The human dimension of the fires has also been vividly relayed in many of the written submissions that individuals, families, community groups and organisations have sent to the Commission.

18.       To make its work accessible to as broad an audience as possible, the Commission moved quickly to establish a website and phone inquiry line, place submissions on its website, have the formal hearings streamed live on the world wide web, and have the transcripts of each day’s hearings made available the following day.

19.       The Commission was required to produce an interim report that addressed matters that are amenable to immediate actions that could be taken for the 2009–10 bushfire season. This necessitated that the Commission identify relevant issues that could be the subject of evidence and would inform the interim report recommendations. The effort required to produce such evidence before the Commission, and consequently to report by 17 August, should not be underestimated, particularly given the time needed to set up an independent body at the outset, and to conduct the community consultations. To achieve the objectives for the interim report the Commission took oral evidence from 87 witnesses over a concentrated period of 37 days of hearings.20 Thousands of documents relevant to matters before the Commission have been read and considered.

20.       This first block of hearings focused on warnings and information provided to the community on bushfires,
to enable the Commission to make recommendations on vital issues that are important to the preservation of human life.

21.       The evidence called focused on the provision and communication of community warnings. The evidence ranged from the use of modern telecommunications to the use of local sirens. Particular warnings issued and the prediction of fire were considered. The background and use of the Prepare, Stay and Defend or Leave Early Policy — the ‘stay or go’ policy — was the subject of evidence, as was the issue of fire refuges.

22.       The interim report is a preliminary report produced to meet the specific direction of the terms of reference. The Commission has already received a volume of evidence that will not be reviewed in this interim report because it relates to matters more appropriate for the final report.

23.       While accepting the need for the Commission to make recommendations in this interim report, the State and the Commonwealth both submitted that the Commission should refrain from making findings of fact
in the interim report. These submissions are in part based on a concern to prevent possible damage to
the reputations of particular individuals and organisations.

24.       The Commission recognises the need for care in relation to findings and recommendations in the interim report. The evidence is not complete in a number of areas that have come under scrutiny in the Commission. The Commission understands that, in some cases, an impression may be given by partial evidence that would change once all the evidence on the subject is received.

25.       The Commission has decided that where evidence does not relate directly to any recommendations made in this interim report, it will refrain from making any findings about that evidence until it releases its final report. The Commission has taken this approach even in relation to matters that it thinks are unlikely to be the subject of any further evidence, because in the absence of any pressing need to make such findings in this interim report, it is preferable to reserve judgment so as to ensure that any interested person has the greatest opportunity possible to put relevant evidence or submissions before the Commission.

26.       The Commission has had to reach conclusions on some issues of fact to enable it to frame the recommendations. The Commission is satisfied that the recommendations contained in this interim
report are based on a solid evidentiary foundation.

27.       The Commission notes the remarks of Justice Stretton in the introduction to his Commission Report provided after the bushfires of 1939: ‘that facile wisdom which comes after an event is not wisdom,
but foolishness’. 21 In deliberating over evidence and making recommendations, the Commissioners
are aware that they are reviewing events through the prism of hindsight.

 

28.       To provide context to the later analysis, the first chapter of this report presents a summary of the main
fires that burned in Victoria in January and February 2009. This is followed by chapters on the various means of community engagement, and a summary and analysis of the contents of written submissions.

29.       Matters that were dealt with in the formal hearings, which have a bearing on the interim report, are treated in chapters on warnings, bushfire information, relocation, the ‘stay or go’ policy, risk and refuges, incident management, emergency management, the Commonwealth response and emergency calls. The final chapter notes issues that will be the subject of future hearings.

30.       A number of matters discussed in this interim report have been referred to parties for trialling, further investigation or further consideration. These matters will be the subject of reports and are listed in the
final chapter.

 

31.       The loss of 173 lives and the destruction caused by the fires on 7 February were the principal reasons
for the constitution of this Commission. In his opening address, the Commission Chairperson proposed
that the protection of human life should be the general focus to guide the work of the interim report.
This position was supported by the State and other represented parties. The evidence given by witnesses and the views expressed in the many hundreds of submissions provided to the Commission further confirm the overwhelming desire of the Victorian community to avoid a loss of life on such a scale again. The Commission adopts the protection of human life as the fundamental guiding principle in framing the recommendations for this interim report and hopes that this principle will also motivate those responsible
for implementing the Commission’s recommendations.

 

32.       The various roles played by fire agencies in preparing the community and in protecting lives in the circumstances of 7 February have weighed heavily in the Commission’s consideration of the evidence,
and in its reflections and recommendations. Such an emphasis is a natural and proper feature of an inquiry of this kind. However, the necessary focus on the role of agencies and the State should not obscure, and should not be seen as diminishing, the responsibility of the community in preparing itself for, and protecting itself against, the extreme hazards posed by bushfires.

33.       The long-term aim expressed in the Victorian policy and legislative framework for community safety in bushfires is to build resilient communities, meaning those in which individuals, households and entire communities are able to effectively draw on personal, social and structural resources to positively take steps to protect themselves against the risks posed by bushfires. This approach uses the language of partnership between agencies and communities. Agencies, as an embodiment of the state, accept responsibility to educate and inform and to protect the community using the resources available to them. Community members accept responsibility for their own decisions.

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34.       The Commission’s recommendations should be read and understood with an appreciation that where agency action is recommended, community participation is implied.  Where warnings are required, so too is a commitment by the community to be alert to fire weather conditions, to tune in to warnings, and to act on them. Where agencies are asked to assist with tools and advice to assess defendable space, community members are asked to use every available resource to assess and prepare their properties. Designated community fire refuges and ‘neighbourhood safer places’ are important. So too are privately arranged safer places. Agencies must actively promote awareness about bushfire and preparedness. The community must avail itself of the educational resources provided, and must take seriously the obligation to prepare.

 

35.       The CFA is justifiably a proud organisation. The history of the CFA has been detailed before the Commission. Time after time, over the decades since its formation, its members have been prepared to make enormous sacrifices for the good of the Victorian community, sometimes at the cost of their lives. The evidence of the Chief Officer of the CFA is that the organisation comprises 59,000 volunteers supported by 400 career firefighters and 700 career support and administrative staff.22 The self-sacrifice and bravery of the men and women who volunteer, and the State’s continuing debt to these people, were highlighted by the events of 7 February.

36.       The firefighters of the Department of Sustainability and Environment (DSE) and the Metropolitan Fire and Emergency Services Board (MFB), and firefighters from other Victorian fire authorities, from elsewhere in Australia and overseas, also deserve similar praise for their generosity and commitment in assisting their CFA colleagues, and the residents of Victoria, during the bushfires.

37.       On 7 February the State of Victoria called on men and women in a number of other services and agencies to help manage the devastation that lay in the wake of the fires. A mighty response was mounted. Those associated with CFA, DSE, MFB, Victoria Police, Victorian State Emergency Service, Emergency Services Telecommunications Agency, Victorian Bushfire Information Line, Networked Emergency Organisation agencies, the Australian Defence Force, businesses, not-for-profit organisations and members of the community generously responded and kept on responding in the days after the initial impact of the fires. Accounts of individual bravery and self-sacrifice have been provided in evidence and these illustrate the commitment of all. This was a magnificent contribution that we publicly acknowledge in this report.

38.       The sacrifice and dedication of the thousands of volunteers is a striking example of the community taking responsibility for itself. So, too, are the many accounts of people helping each other in the midst of overwhelming fires and unspeakable loss. The Commissioners are hopeful and optimistic that the recommendations for changes to the legislative and policy framework will only strengthen an already
resilient community.

39.       Without in any way diminishing the outstanding contribution of all members of these organisations, the Commission’s role requires it to continue to examine the functions, protocols and administration of the main emergency service organisations so that lessons can be learnt from this disaster. The Commission’s primary guiding principle, the protection of human life, demands no less.

 

[1]     Exhibit 22 – Statement of M Williams (WIT.013.001.0002) [18]

[2]     Exhibit 22 – Statement of M Williams, Annexure 1 (WIT.013.001.0012) at 0033

[3]     M Williams T721:8–T721:10

[4]     Exhibit 22 – Statement of M Williams (WIT.013.001.0002) [24]–[25]

[5]     Exhibit 22 – Statement of M Williams (WIT.013.001.0002) [29]

[6]     Exhibit 22 – Statement of M Williams, Annexure 1 (WIT.013.001.0012) at 0038

[7]     Tolhurst T992:12–T992:16

[8]     Exhibit 32 – Statement of Tolhurst, Expert Report (EXP.003.001.0017) at 0026

[9]     Exhibit 3 – Statement of Rees, Annexure 21 (WIT.004.001.0479) at 0479

[10]   Teague – Chairperson’s Opening Remarks, Directions Hearing 20 April 2009

[11]   Williamson T4441:27–T4442:6; Lawrence T1600:15–T1600:19

[12]   McGahy T2252:14–T2252:23

[13]   Exhibit 32 – Statement of Tolhurst, Expert Report (EXP.003.001.0017) at 0029

[14]   D O’Halloran T3695:13–T3695:14

[15]   Tolhurst T996:25–T996:26

[16]   Exhibit 139 – Report of Victorian Bushfire Reconstruction and Recovery Authority, 100 Day Report (TEN.046.001.0001)

[17]   Ferguson v Cole (2002) 121 FCR 402 [18]

[18]   Dixon v Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia – Letourneau Commission) (1997) 149 DLR (4th) 269 at [14], per Marceau J (Federal Court of Appeal)

[19]   R v War Pension Entitlement Appeals Tribunal; Ex Parte Bott (1933) 50 CLR 228, 256 (Evatt J)

[20]   Appendix 2 presents a schedule and list of witnesses in the first round of public hearings.

[21]   Exhibit 81 – Report of the Royal Commission into the Bushfires of January 1939 (TEN.028.001.0001) at 0005

[22]   Exhibit 3 – Statement of Rees (WIT.004.001.0001) [21]