Emergencies in the judicial spotlight! Michael Eburn ANU College of Law

Aim To review the fate of emergency management in post fire event judicial reviews. How? Review 23 post fire Royal Commissions, Parliamentary or Coronial reviews from 1939 to How did the ECC/IMT fare? Recommendations? Lessons to be learned?

953 Recommendations

Fire Agency management

Recurring themes Use standard terms; Members of the IMT from different organisations have to train together; The IMT has to consider as part of its function, delivering warnings to local communities; ECC needs to physically suitable and co-located with other ECCs (eg MECC and Police operations); People need to be trained to the level of responsibility (eg only trained Level 3 Controllers to be Level 3 Controllers; regardless of their organisation).

How do the Commissions come to these conclusions? They review what agency policy documents say will happen, and compare it to what did happen…

Wangarry (SA) fires Fire January dead; 115 injured; $100 million property damage. Inquest from October 2005 to May witnesses. Chapter 12 – reviewed legislation and SOPs (including documents on the role of the IMT and the Incident controller). Chapter 13 – reviewed the action of the IMT and compared the response to the policy documents.

Wangarry (SA) fires Mr Anthony E Schapel, Deputy State Coroner, South Australia “… the single most powerful factor in the deaths of the nine deceased was the escape of fire from the swamp area... That fire was able to escape … by the failure to identify and recognise the considerable risk to the community that was posed by the presence of fire … and by the extreme weather that was forecast for the Tuesday… What action that was taken to identify that risk and to minimise it was characterised by facile solutions to a complex problem. Essentially, the potential for dangerous fire to emanate from the swamp into Areas A and C was simply not properly addressed.” [13.9].

“… the two most dangerous areas of the overnight fireground... were the two areas that were the subject of neglect, as exemplified by the fact that there was not even a Sector Commander for Area C until the Tuesday morning and even then the Sector Commander’s appointment was made without that person’s knowledge. As far as Area A is concerned, it was part of a sector that was never properly identified as such to the Sector Commander.” [13.9]

Who was the IC? The former Group Officer (of 25 years) had stood down from that role; but he was at the ICC in CFS Dress Uniform having come direct from a meeting in Adelaide.

Who was the IC? “It would be naïve to think that [his] air of authority and his esteem as the most senior voluntary fire firefighter on the Lower Eyre Peninsula had evaporated overnight. … [13.11] During the course of the Inquest, the suggestion was made that [he] was in many senses the defacto Incident Controller. This appears to have been the perception of a number of persons present at the Wanilla Hall that evening. … [13.34] The roles of the various participants at Wanilla Hall and the identification of those roles would not have been helped by the fact that no-one wore tabards depicting their functions...” [13.35]

Who was who? “This important extension of the boundary of the Swampy Sector was never communicated … The consequence was that Area A and the swamp within Area A remained unattended overnight and into the following day. This is no reflection on Mr R or Mr C. They simply were not told that they had any responsibility in relation to Area A or the swamp adjacent to it. … [13.42] Mr L was meant to be the Planning Officer under AIIMS. Mr L claims that he did not know of that fact.”[13.43]

Handover “[The Incident Controller] was to leave the Wanilla Hall at a time well before the arrival of the relieving Incident Controller … which is said to be, and indeed is, an extraordinary thing [13.21]… As to who the Incident Controller was during the hiatus … is unclear.”[13.46]

The need to supervise IMTs “It is clearly not enough for the paid regional staff merely to act as conduits for information between volunteer Incident Management Teams and State Headquarters.” [13.7]

But that must have been an extreme case... But consider 2003 ACT coroner’s inquest – failures by IMT to properly consider the risk; to properly plan for the predicted outbreak of fire; plan based on ‘wishful thinking’ [7.7.13]. Initial response was below that required by SOPs [5.2.1]; Who was in charge? Ambiguity between the IC in the field and the ICT at HQ – who knew the long term plan? [5.2.4]. Ambiguous conversation leads to the question ‘who was making the decision?’ Compare that finding with the NSW Coroner’s findings into the same fire and the NSW response.

See also 2007 Boorabin fires – failure to communicate within the IMT; failure to take account of forecast wind changes; failure to seek assistance from FESA; failure to involve police 2009 Victorian Bushfires Royal Commission – failures by IMT to consider community safety; failure for planning information to be conveyed to IC; lack of supervision of IMT by Chief Officers; failure to plan for the predicted wind change;

So what happens? 2003 Canberra inquest - Adverse comments and significant litigation between the ACT IMT and the Coroner; Litigation is ongoing and involves analysis of IMT/ECC decision making. Who’d want to have been the IC on 8 January 2003? 2007 Booorabin Fires, the entire IMT was described as ‘incompetent’; 2009 Royal Commission – fate of Chief Officers and Police Commissioner in the public eye?

OK, but these are cases where it all went wrong.... “It has to be also considered that if there had been a favourable outcome in this fire … a ‘routine outcome’, it is unlikely that the members of the Incident Management Teams would have been accorded accolades in any sense proportionate to the opprobrium that they have now had to endure.” [13.4] But when it goes wrong, no-one blames or criticises the responders on the fire ground; the buck stops with the management team – even volunteers.

Volunteers are not immune “While recognising that without voluntary workers the CFS would cease to function …it also has to be recognised that volunteerism is not the same thing as amateurism. Given the onerous statutory responsibilities that the CFS carries out, although carried out as it is by voluntary workers for the most part, it is difficult to support any conclusion other than that volunteer individuals who aspire to positions of seniority within the volunteer ranks, and who aspire to perform tasks of significant responsibility during the course of incidents, should be anything other than trained and competent and act as part of a team.” [13.6]

“… while there may be difficulties in terms of the accountability of volunteers, in as much as they might simply walk away if any sanction is to be visited on them, it does not mean that in the context of an inquiry such as this, their actions are immune from scrutiny and analysis. … Thus, while it is regrettable that on occasions the actions and failings of certain individuals have to be spelt out, especially in a setting where those actions and failings have occurred in a context of voluntary work, it is in the interests of justice and in the public interest that such a process has to occur.”[13.8]

What to do... Consider and follow the SOPs but don’t become inflexible – if it’s not working, change tactics. Ensure effective communication across the IMT; Record everything; and keep the records; Consider recommendations for Audit Teams, Safety officers and media officers.

Litigation Suing for damages – this is quite different to inquests, Royal Commissions and adverse press publicity. There is surprisingly little – see Bushfire CRC Fire Note. Litigation from fires in 2001, 2003 and 2009 is ongoing. Legal position of the fire brigades remains uncertain. No real risk of actions against individuals (note Canberra fires litigation – action against Commissioner Koperberg was withdrawn).

Questions? Comments? Discussion? Thank you for your attention. Michael Eburn ANU College of Law & Fenner School of Environment and Society.