the attached transcript, while an accurate recording of...

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__________________________________________________________

TRANSCRIPT OF PROCEEDINGS__________________________________________________________

The attached transcript, while an accurate recording of

evidence given in the course of the hearing day, is not

proofread prior to circulation and thus may contain minor

errors.

2009 VICTORIAN BUSHFIRES ROYAL COMMISSION

MELBOURNE

THURSDAY 13 MAY 2010(149th day of hearing)

BEFORE:

THE HONOURABLE B. TEAGUE AO - ChairmanMR R. MCLEOD AM - CommissionerMS S. PASCOE AM - Commissioner

__________________________________________________________CRS WORDWAVE PTY LTD - A MERRILL COMPANY.4/190 Queen Street, Melbourne. Telephone: 9602 1799

Facsimile: 9642 5185

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.Wordwave:MB/SK 13/05/10 MR ROZENBushfires Royal Commission

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MR ROZEN: Commissioners, firstly I apologise for the latestart this morning. We were discussing something whichwill hopefully shorten things in the end.

CHAIRMAN: Okay.MR ROZEN: That is always the explanation for a delay,

Mr Chairman. Commissioners, this morning we are makingoral submissions in relation to three specific systemicissues. These issues arose from the evidence that was ledduring the course of the Commission's examination of thevarious fires which ignited on 7 February 2009 and firesthat ignited prior to that day and were still burning onthe 7th.

The three topics that will be the subject of oralsubmissions this morning are, firstly, the topic offirefighter safety. I will address the Commission onbehalf of counsel assisting in relation to that topic.The second topic is information sharing, and that is alsomy responsibility. The third topic is aerialfirefighting. Ms Richards will make oral submissions onbehalf of counsel assisting in relation to that topic.

If I can start with firefighter safety. Counselassisting have made detailed written submissions inrelation to the topic of firefighter safety and they arecoded as (SUBM.504.001.0001). We have received asubmission in response from the State of Victoria. That'sat (RESP.300.006.0147). We have also received asubmission on behalf of the volunteers which is at(RESP.7506.002.0001).

Before I address the Commission in relation tothe topic and identify the fairly limited area ofdisagreement between counsel assisting and the parties in

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relation to firefighter safety, I wish to tender twodocuments which were provided to us yesterday and arerelevant to the topic of firefighter safety. The first isa report that was prepared for the Australasian FireAuthorities Council Occupational Health and SafetySubgroup by Mr Jim McLennan of the School of PsychologicalScience at La Trobe University. It bears the dateJune 2005 and the coding reference is (CFA.600.005.0367).I'll make some reference to the contents of that report,but I would seek to tender that at this stage, please,Mr Chairman.

#EXHIBIT 956 - Safety Management at Incidents(CFA.600.005.0367).

MR ROZEN: I should express a degree of disappointment that thedocument was only provided to us yesterday. It isrelevant and does contain some important observations inrelation to firefighter safety. It is unfortunate that wedidn't have an opportunity to explore its contents withthe witnesses when they were called on this topic. Havingsaid that, it is clearly relevant and we are content forit to be part of the evidence before the Commission.

The other bundle of documents that I would seekto tender is incident shift plans for 16 and 17 February2009 in relation to the Murrindindi fire or what was bythen the combined Kilmore East/Murrindindi fire. If I canperhaps first identify them and then briefly explain whythey are being tendered at this time. The bundle of shiftplans for the night shift of 16 February 2009 is at(DSE.0162.1339.0127) and the shift plan for the day shift17 February 2009 is at (DSE.HDD.0005.5978).

They are relevant because they are the applicable

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shift plans to the firefighting crew from the AustralianCapital Territory of which Mr David Balfour was a member.It will be recalled, Commissioners, that Mr Balfour diedon 17 February 2009 when a tree fell on the tanker that hewas working on and the circumstances surroundingMr Balfour's death have been the subject of investigationin the fire related deaths stream and are the subject of aseparate exhibit.

The reason that this issue has arisen here isbecause in counsel assisting's submissions on firefightersafety at paragraph 7.3, which perhaps if we could go tonow on submissions page 17, as part of our generalsubmissions on the failure to appoint safety advisers on7 February 2009 we made the observation that the evidenceindicated there was no safety adviser appointed as part ofthe incident management team on 17 February 2009.

CHAIRMAN: The State's submissions dealt with that, and so thisclears the air.

MR ROZEN: It does. We would concede that, from an examinationof the charts that were prepared by the incidentmanagement team, there was a safety adviser appointed bothfor the night shift of 16 February 2009 and for the dayshift of 17 February 2009. A further document has beenprovided to us this morning which also sheds some light onthat issue. That document has not yet been coded but isin the process of being coded. What I would seek to do atthis time, Mr Chairman, is tender the two incident shiftplans together with the additional document that's beenprovided to us this morning, which I should identify forthe record is entitled "Safety briefing sheet, safetyissues and messages" and was prepared by the safety

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adviser, Mr Dean Manson, for the incident controller, RodCaddell. It is dated 17 February 2009. The time is1800 hours. So I would seek to tender the two incidentshift plans together with this document as a separateexhibit.

CHAIRMAN: Yes.MR ROZEN: It has been drawn to my attention there is one

additional document that needs to be added to thatexhibit. It is the incident management team chart for theday shift 17 February 2009. There are various copies ofit around, I think. One is identified as(DSE.0052.0417.0150). I would ask that that be made partof that exhibit.

#EXHIBIT 957 - CFA and DSE - Incident Shift Plan - Plan No: 16- Night shift - Incident No: 37 - Kilmore East-MurrindindiComplex North (DSE.0162.1339.0127_R). Plan No: 17 -Incident no: 37 - Incident Name: Kilmore East MurrindindiComplex North (DSE.HDD.0005.5978_R). Safety briefingsheet. Safety issues and messages, prepared by the safetyadviser, Mr Dean Manson, for the incident controller RodCaddell. Time is 1800 hrs (EXH.957.0001). AIIMSStructure - Incident Management team (IMT) - Joint AgencyCFA & DSE (DSE.0052.0417.0150).

MR ROZEN: With those various housekeeping matters taken careof, if I can return to the submissions. The Commissionwill recall that the topic of firefighter safety has beenthe subject of a good deal of evidence before theCommission, both in the fire by fire examination where itwas particularly a topic that was examined in relation tothe Murrindindi fire and also the Churchill fire, and morerecently has been the subject of evidence in relation to

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the Kinglake backburn which was part of the response tothe Kilmore East fire.

In addition, there was a dedicated day ofevidence in relation to firefighter safety. As I haveindicated, written submissions have been filed by theparties. For counsel assisting's part, in our submissionswe submit that four recommendations ought be made by theCommission in relation to this topic and they are listedat paragraph 9.8 of our submissions on page 33. If theycould be brought up.

The first recommendation is that CFA/DSE shouldimmediately implement the United States model of providingsafety officers with the power to veto unsafe operationaldecisions by recasting standard operating procedure J3.04;developing a position description for the safety officerrole in line with the one used by Calfire; and providingtraining on these changes to all relevant firefighters.

We then submit that the implementation of thesafety officer role should be accompanied by a thoroughexamination of the US experience to determine if there arelessons that can be learnt from that experience. It isthat recommendation that I will be principally addressingthe Commissioners in relation to this morning as there isa considerable point of disagreement between us andparticularly the State, but also the volunteers inrelation to this matter.

The second recommendation is that DSE and, whereappropriate, CFA should ensure that all relevant staff aretrained in the need for incident controller approval to beobtained before a backburn is lit in the circumstancesoutlined in the DSE's fire suppression manual. Such

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training should draw on the experiences of the Marysvilleand Kinglake West backburns and the expertise of peoplesuch as Dr Kevin Tolhurst.

There is a large degree of agreement in principlebetween counsel assisting and the parties in relation tothat recommendation. The State point out that there maybe other experts with more relevant expertise thanDr Tolhurst. The Commission will recall hearing fromDr Tolhurst very briefly in his most recent evidence onthe topic of backburns. It is pointed out quite fairly bythe State, we would accept, that Dr Tolhurst's expertiseis primarily as a fire behaviouralist rather than a personwith expertise in relation to operational firefighting.Whilst his expertise may be of benefit in relation to theprovision of such training, we would accept that there areother experts equally or perhaps better qualified toassist in relation to operational aspects.

Proposed recommendation 3 is in the followingterms: CFA should completely overhaul its procedure forconducting investigations into OHS incidents. It shoulddevelop a new procedure that ensures all relevant peopleare consulted during the investigation process and thatall relevant people are informed of the results of theinvestigation. To ensure that all contributing factorsare identified, those investigations must examinemanagement faults including faults at the incidentmanagement team level as well as failings at the crewlevel.

Commissioners, the topic of investigations isdealt with as a discrete area in our submissions insection 8, starting on paragraph 29. We note that there

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is in evidence before the Commission in I think exhibit548, 19 investigations of burnovers that occurred on7 February 2009. The Commission has heard evidence aboutwhat we say are fundamental flaws in the process ofinvestigation, including a failure to consult all relevantpeople in the process of conducting the investigation.For example, Commissioners will recall the evidence aboutthe investigations conducted into the three burnovers ofthe Churchill fire and will recall that the incidentcontroller, who is ultimately under the AIIMS structureresponsible for the safety of firefighters, had not beenconsulted during the course of the investigations; nor,perhaps even more surprisingly, had he been informed ofthe results of the investigations which are, at leastindirectly, critical of his role as incident controller.

We say that those two deficiencies arefundamental ones and they detract significantly fromthe apparent purpose of the investigations, which is tolearn lessons from such events so as to improve safety inthe future. So we recommend in those circumstances thereis a need for a complete overhaul of the investigationprocess.

The response of the State to that recommendationis to take issue with the use of the adjective "complete"and to accept that there is a need for improvement in theinvestigation process and to point out that there has beenalready considerable work done in relation to altering theinvestigation process so as to remedy what are accepted asflaws in the process as identified in the evidence beforethe Commission.

The final recommendation that we propose is

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recommendation 4, in the following terms at page 34 of oursubmissions: DSE should ensure that it revises itsinvestigation protocols so that in future it investigatesOHS incidents such as the Kinglake and Marysvillebackburns. That recommendation is supported by the State,as it says in its submissions at page 166, in principle.The State notes DSE's continual improvement program, whichis something referred to by Dr Edgar, and points out thatthere has already been an increase in the number ofinvestigators, with over 40 being available for the2009/2010 fire season.

The need for that recommendation will, I hope, beapparent, Commissioners. That is, that the evidence thatthe Commission has heard, particularly about theMarysville backburn but also about the backburn lit atKinglake West, whatever be the merits of the decisions andwhatever be the pros and cons of lighting those backburns,one thing is abundantly clear, in our submission,particularly with the Marysville backburn, that asignificant number of firefighters were put at seriousrisk to their safety by the lighting of particularly thatbackburn, but also, we say, the backburn at Kinglake West.

In those circumstances, it was surprising to hearfrom Dr Edgar, who was put up as the DSE witness inrelation to this topic, that there had been no internalinvestigation into the backburns examining the topic offirefighter safety, so looking at them from theperspective of firefighter safety. Dr Edgar's evidence,rather, was the DSE was looking to the Commission, lookingto the findings of the Commission in relation to thosematters. Whilst clearly that's welcome, we would submit

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that an agency such as the DSE with a clear responsibilityfor the safety of its employees should be conducting itsown internal investigations into such matters, primarilyfor the purpose of learning from that experience so that,for example, there would be an examination of why it wasthat incident controller approval was not sought by thoseinvolved in either the Marysville backburn or the KinglakeWest backburn. Is that because they weren't aware it wasnecessary? Is it because they didn't have time to do it?Is it because they didn't consider it was important?There is any number of possible explanations and theyought be the subject of an investigation by an agency suchas the DSE.

Returning then to recommendation 1, which asI have indicated is the area where there is the maindisagreement between counsel assisting and the State, butalso the volunteers. The recommendation is for what isconceded to be a significant change to the arrangementsfor incident management in Victoria; that is, the adoptionof what we have referred to in shorthand as the US model,but really the evidence before the Commission is it is aCalifornian model of having a safety officer with a powerof veto over operational decisions. So their principalrole, Commissioners, as you will recall from the evidenceof Mr Streblow from Calfire, their principal role is anadvisory one, but they have the capacity to veto anoperational decision in the interests of firefightersafety.

The disagreement between the parties necessitatesan examination of three interrelated issues. The first isto understand why it was that safety advisers were not

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appointed at all but two incident control centres on7 February. The second question is to understand whetherthe absence of safety advisers on 7 February made apractical difference to the safety of firefighters. Thethird and principal issue is what should now be done inlight of that evidence.

If I could deal with each of those topics inturn. The first is the fundamental question why is itthat there were no safety advisers appointed other than attwo incident control centres on 7 February 2009, andparticularly why is it that there were no safety advisersappointed at the Kilmore East ICC, the Murrindindi ICC,the Churchill ICC, the Beechworth ICC and the Bendigo ICC,the ICCs that were in control of the fires where of coursethere was loss of life, but also, on the evidence, asignificant number of burnover incidents which are thesubject of investigation reports that are in evidencebefore the Commission.

The first thing to observe about this question,as we point out in paragraph 7.5 of our submissions, isthat the failure to appoint safety advisers by theincident controllers in each of those cases was a breachof a standard operating procedure that was applicable tothe incident controllers.

COMMISSIONER McLEOD: Is it fair to say an operating procedurethat required no exercise of discretion?

MR ROZEN: Yes. That would be our submission, CommissionerMcLeod, that there was no room for discretion. As weunderstand it, that's conceded by the State. The secondthing to observe is that the agencies had a standardoperating procedure that dealt with compliance with

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standard operating procedures. That's standard operatingprocedure 1.01, which we extract in 7.5 of oursubmissions, that said, "It is expected that standardoperating procedures be adhered to unless exceptionalcircumstances apply." And it went on, "It is expected thatSOPs be adhered to. Where a CFA member is unable tocomply with a chief officer's SOP, the CFA member is todiscuss the noncompliance with the line commander." Inthose circumstances, we say that a failure to comply withany SOP is a significant matter. Where it is an SOP thatdeals with something as important as firefighter safety wesay it is a very serious matter.

However, what we have in relation to thisquestion is not an isolated example of a failure to followan SOP but widespread noncompliance across a number ofincident control centres on what was recognised by allinvolved as being the worst imaginable day, not only forthe community of Victoria, but also for firefightersafety. The Commission has in evidence records of theteleconferences that were engaged in by the chief fireofficers of the agencies on 5 and 6 February and we havesummarised that evidence in our submissions at paragraphs7.29 and 7.30. I don't need to go to those now, but itwill be recalled that the chief officers told their seniormanagers that one of the principal concerns on 7 Februarywould be to look after the safety of firefighters. Ofcourse, one of the very tangible ways that was availableto the incident controllers appointed on that day toachieve that laudable aim was by appointing safetyadvisers.

Not only was there widespread noncompliance with

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the standard operating procedure, but it would appear fromthe evidence that no-one whose responsibility it was tomonitor or oversee the operation of incident controlcentres picked it up at any time on 7 February. TheCommission has evidence before it of the role that wasplayed by RECCs and the role that was played by IFACCs inoversighting the work of incident control centres, insupporting them, in assisting them with resources, and ofcourse it has evidence about the role played by the IECC.It has evidence that there was throughout 7 February afull-time health and safety officer working in the IECC.In fact there were two; there was one for the CFA, therewas one for the DSE. Despite all of that oversightinginfrastructure, this, what we say is a fundamentaldeparture from good practice, was not noticed.

But it goes further than that, in our submission,because of course there was an extensive debriefingprocess quite properly engaged in by the agencies thatultimately resulted in an operational debrief report whichis exhibit 192. Although there is a small section in thatreport that deals with firefighter safety, and in fact areference to safety advisers, there is no mentionwhatsoever of the failure to appoint safety advisers on7 February 2009 as being an issue worthy of noting in thedebrief.

Nor was there any reference made to this issue inthe material that was prepared to brief level 3 incidentcontrollers in advance of the most recent fire season.The Commission has copious materials that are annexed tothe statement of Mr Haynes, exhibit 547, where thebriefings that were provided in advance of the present

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fire season as learnings from the 2008/2009 season aredetailed. One searches in vain for any reference to thisissue, for any reminder to incident controllers of theirobligation to appoint safety advisers.

As our submissions point out, this issue has along history. It dates back at least as far as the Lintonreport, which is in evidence before the Commission. Wehave noted and it is a matter of public record that theagencies vehemently opposed the introduction of the safetyadviser position during the course of the Linton inquest.Despite that opposition, Coroner Johnson recommended thata safety officer be included as part of incidentmanagement teams. The opposition that was expressed bythe agencies was essentially predicated on the followingnotion: that because they take the view that safety iseveryone's responsibility, having a dedicated personlooking after safety would somehow detract from thepersonal responsibility that others involved, both at thefire ground level and at the incident management teamlevel, have for safety.

Coroner Johnson's response to that is set outclearly in the findings from the Linton inquiry andHis Honour rejected that submission, could see no reasonin principle why the safety is everyone's responsibilityand a safety adviser in the IMT to have specific attentionfocused on firefighter safety couldn't live together.

We note for the record that in the AFACpublication, which is exhibit 956, there is a usefuldiscussion of this issue; that is, of the pros and cons ofappointing safety advisers. The author notes the historythat I have just summarised, the opposition by the CFA and

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what was then the NRE to the introduction of safetyadvisers during the course of the Linton inquest, andpoints out that the concern, based on the author'sexamination of the record, was misplaced or ill-founded,that there is no conflict between the concept of everyonehaving a responsibility for occupational health andsafety, what is sometimes referred to as the safe personapproach, and having a safety adviser whose role would beto advise the incident controller. The author refers toit, and I don't think I need to go to the document, but atpage 370 in the third dot point that so-called debate orconflict has "become a non-issue". It is noted that allstate and territory firefighting agencies, other than inthe Northern Territory, have provisions appointing safetyadvisers and all maintain a strong commitment to a safeperson approach to incident safety.

It is in light of all of that evidence before theCommission that we say that there is a link between whatwe characterise as the historical antipathy by theVictorian firefighting agencies to the concept of safetyadviser and the failure to appoint them on 7 February2009. We are saying that the agencies paid lip service tothe recommendations of the coroner by introducing astandard operating procedure that provided for theappointment or required the appointment of safetyadvisers, but when the heat was really on, on the worstimaginable day so far as firefighter safety was concerned,there was effectively no implementation of the standardoperating procedure.

That is why we make the submissions we do in oursubmissions starting at 7.28 under the heading "The real

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reason why safety advisers were not appointed." If wecould go to that at page 25 of our submissions. We submitthat the real reason why so few safety advisers wereappointed on 7 February 2009 is that there is alongstanding and ongoing antipathy within the agencies tothe concept of stand-alone safety advisers or officers.We note that that dates back to Linton and we note thatthe failure for these matters to have been followed up bythe agencies before they were explored by the RoyalCommission late in 2009 lends weight to the submissionthat we make.

The second and related question is did thefailure to appoint safety advisers on 7 February 2009 makea practical difference to firefighter safety. Atparagraph 7.34 of our submissions we concede that it is adifficult question to answer with certainty. However, wesubmit that it is open to the Commission to draw theinference that a safety adviser could well have improvedfirefighter safety outcomes.

Our starting point for this aspect of oursubmissions is that the record, the safety record on7 February 2009, is not a record of which the agencies canbe proud. We accept it could have been much worse, asMr Esnouf conceded in his evidence. But 19 burnoverincidents involving tankers with crews of up to fivefirefighters, a number of the crew leaders issued maydaysignals indicative of the serious danger in which theyconsidered their crews to be, widespread deficiencies inbriefings, in deployment processes, in supervision, all ofwhich are identified in the investigation reportsconducted by the agencies themselves, is not a record of

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which, we submit, the agencies can be proud.We accept, as is pointed out by the State in its

submissions, that significant steps were taken,particularly in the aftermath of the Linton tragedy, bythe agencies to improve firefighter safety. We acceptthat the introduction of minimum skills played a veryimportant role in improving safety outcomes forfirefighters, particularly volunteers. We note that,unlike the experience at Linton, apart from the possibleexample of the North Warrandyte tanker which I will cometo in a moment, there is no evidence of a tanker runningout of water, so that when the ultimate emergency aroseand they were burnt over, all of the crews were able todeploy their protection sprays, and we accept that that isanother positive outcome of the Linton experience and istestament to the training that the agencies engaged in andchanges to equipment in light of the experience at Linton.

But, having said all that, the injuries that wehave identified in our submissions and the many nearmisses - any one of which could have been a multiplefatality, in our submission - indicate that a lot wentwrong so far as firefighter safety was concerned on7 February 2009. We have referred to two specificexamples in our submissions of how we say a safety advisercould well have made a difference to firefighter safetyoutcomes on 7 February. The first of those arises fromthe Churchill fire. Commissioners will recall that therewere three burnover incidents, each one of which wasinvestigated, and the reports in each concluded that a redflag warning that was received by the crews, or in onecase overheard by the crew, gave misleading information

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about the likely arrival of a wind change.At paragraph 7.36 of our submissions we quote

from the investigation report into the burnover involvingthe Glengarry West tanker burnover. The report concludedas follows: "The red flag warning that was received atabout 1730 hours warned of a south-west wind change for1900 hours. The change in fact impacted the fire area at1805 hours. While the red flag is given as guidance and aheads up for field crews and commanders of a significantevent coming, in this instance the warning may haveprovided a false sense of security by leading the crew tobelieve they had plenty of time to establish themselves attheir new assignment."

As we point out, the reports in respect of theburnovers involving the Boolarra tanker 3 and HazelwoodNorth tanker 1 reached similar conclusions.

Commissioners, the evidence about thecircumstances in which the incorrect information wastransmitted in the red flag warning are the subject oflengthy and detailed submissions by counsel assisting inrespect of the Churchill fire and lengthy and detailedresponses by the State in its submissions. Now is not thetime to traverse that ground yet again. However, what isabundantly clear from all of the information is that thecrews received an inaccurate red flag warning.

In those circumstances, according to the internalinvestigation reports, their safety was imperilled byreason that they may have been given a false sense ofsecurity about the amount of time they had to work beforethe arrival of the south-westerly wind change. It will berecalled that the five volunteer firefighters who died at

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Linton died in precisely those circumstances, where theywere working on the eastern flank of a fire, unaware thata south-westerly wind change was soon to arrive and turnthat eastern flank into the head of the fire. It was inthose circumstances that they were burnt over with thatloss of life.

What we say about that is that, had a safetyadviser been present in the incident control centre withthe experience and training required of someone with alevel 2 incident controller accreditation, which is whatis identified in the standard operating procedure as theminimum accreditation for a person fulfilling thatfunction, and more importantly with the sole role of theprotection of firefighter safety, we say it'slikely - very likely - that the dots would have beenjoined, that it would have been recognised that, based onthe most recent spot weather forecast, it was very likelythat the south-westerly wind change would arrive earlierthan had originally been forecast.

The Commissioners will recall that the spotfireweather forecast arrived at the incident control centresomewhere around about 4 pm and it forecast a wind changearriving within a window that included the very time thatit in fact arrived. How it is that that information wasnot conveyed to the ground crews remains something of amystery, but we say the significant lesson from it is thatthe presence of a safety adviser may well have made adifference by advising the incident controller andoversighting the provision of what is a crucial piece ofinformation to those on the fireground.

The second example we point to is the example of

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the Murrindindi backburn. That is the backburn that waslit at Marysville. It will be recalled, Commissioners,that the evidence is that whilst there was some contactmade with the incident control centre in relation toseeking approval, ultimately approval was not conveyed.

We say what's apparent from the evidence of thevarious witnesses is that there does not appear to havebeen active consideration given to the risk posed to thesafety of the firefighters in any of the discussions aboutthe Marysville backburn. We deal with this at paragraph7.42 of our submissions and we note that one of the veryreasons identified in the DSE's fire management manual forthe need to get incident controller approval before abackburn is lit is because of the danger to firefightersafety if a backburn is lit in conditions such as theconditions that prevailed on 7 February 2009.

There is evidence before the Commission thatthere was some brief discussion amongst the variousmembers of the incident management team in response to therequest for approval to light the backburn. However, itdoes not appear from that evidence that the question offirefighter safety was part of that consideration. Wesubmit the presence of a safety adviser in the incidentmanagement team would have ensured that regard was had tofirefighter safety in the consideration of whetherapproval ought be given, and a thorough examination ofwhat the incident management team knew by 6.30 pm of thebehaviour of the fire and what the incident managementteam knew about the potential arrival of a south-westerlywind change would have led, quite readily we submit, tothe conclusion that the risks outweighed the possible

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benefits from the lighting of the backburn.Before leaving this topic of would a safety

adviser make any difference, it is necessary to make briefreference to the AFAC report where there is a summary ofthree significant wildfire incidents in the United States.If exhibit 956 could be brought up, please, at page 385.That's the document at (CFA.600.005.0367), at page 385.This is the exhibit I tendered this morning,Commissioners. There is a reference to three wildfires inthe USA, in the middle of the page. The author says they"are instructive concerning safety at wildfires and theresponsibility of" incident control - I'm not quite surewhat the "S" stands for, but what we would refer to asincident control centre personnel.

The first is the Sadler fire burnover, where itis noted that there was an entrapment of a crew inAugust 1999 in Nevada. Towards the bottom of the pageit's noted that one of the reasons why there was anentrapment was the tactic of backfiring, which I thinkthere is evidence before the Commission is a US term forbackburning. I will stand corrected if I'm wrong aboutthat. It is noted that that tactic on such an extreme daywas hazardous. It notes that fire behaviour forecastswere not given adequate consideration by the IMT. At thetop of the following page, page 386, it notes that anincident action plan for the day "was incomplete,contained several errors and was not distributed to allthe crews."

The second example which is looked at is theCramer fire fatalities in July 2003 in which twofirefighters perished when their appliance was burnt over.

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In the final paragraph on that page it states, "Theinvestigation team concluded that the Type III incidentcommander failed to continually re-evaluate the situationand modify his plan when fire conditions changed and whenrequested resources were not available. There weresignificant safety lapses prior to the fatalities." Anumber of those are listed, including inadequate resourcesfor the incident action plan.

Then towards the bottom of the page, about eightlines up it is noted, "The incident controller did notappoint a safety officer, even though a fire plan for aType III fire requires this action. When the incidentcontroller made his decision to retrieve the firefighters,half an hour elapsed before a helicopter was launched, andthat launch came following an urgent request by thefirefighters. During the critical period before thefatalities, the incident controller was also functioningadministratively as the district fire management officer,performing multiple functions." It is then listed thatdisciplinary action, which has not been specifiedpublicly, was taken against six personnel involved in themanagement of the incident.

The final example looked at is the Cedar fire ofOctober 2003 in which there were 13 civilian deaths, 107injuries and one firefighter fatality. There isn't muchby way of analysis of that, but it is noted in boldtwo-thirds of the way down the page, "In the subsequentafter action review report, it was noted that a lack oftrained personnel hindered the appointment of safetyofficers during the course of the fire."

That material would seem to lend support to our

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submission, we would say, that the absence of a safetyadviser can have very real, practical consequences for thesafety of fire crews. After all, you could ask, if itdoesn't make a difference, then why bother having someonefulfilling the role, which brings us to the nub of theissue, and that is what recommendations should theCommission make about this issue in future.

The position of the State is essentially this:They say, "Yes, it was lamentable that there weren'tsafety advisers appointed, but it's not correct to saythat there's some systemic antipathy to the position. Itwas merely a matter of there being too many jobs to do onthe day and people were appointed to other positions."Commissioners will recall the evidence before theCommission is that there were some 200 trained personnelwho were able to perform the role of safety adviser on7 February 2009. If the position is as was described byMr Esnouf, that is that there were other matters whichwere considered more important than having a safetyadviser, then we would submit that that really makes ourpoint: that there is a widespread antipathy to theposition, that it is not considered as important as otherundefined roles in the context of a day such as 7 February2009.

That was Mr Esnouf's explanation so far as theCFA-run fires were concerned. Dr Edgar was asked aboutthe absence of a safety adviser at the DSE-run fires,including in particular the Murrindindi fire and hisanswer was he didn't know. That would appear to suggestno investigation at all within the DSE of the failure toappoint safety advisers.

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In those circumstances the State says, "We'vefixed the problem. We have hard wired", to use theexpression in the State's submissions, "the safety ofsafety adviser into our minimum staffing levels for fullincident management teams in the future." The difficultywith that submission, as we have pointed out in ourwritten submissions, is that that's no change from whatwas in place on 7 February 2009. What's changed is thatthe minimum staffing levels for IMTs has gone from 14 to30, and that's the subject of other submissions before theCommission. But of the 14, one of the mandatory positionson 7 February 2009 was the safety adviser. Now it is oneof 30 positions that is identified.

So we say the Commission ought not have anyconfidence, in light of the evidence that it has heard,that that change is going to make any difference in futureon days such as 7 February 2009 or in fact far more benigndays. The forest danger index at the Linton fire wassomewhere in the vicinity of 28, as I recall it, so it'sclear that you don't need a day like Black Saturday forthere to be serious dangers for firefighters working onthe fireground.

We say what is needed is a completely newapproach to the role of the person identified within anincident management team as having the sole responsibilityof looking after the safety of firefighters. TheCommission has heard a great deal of evidence about thecourageous work that was done not only by volunteerfirefighters but also career firefighters on 7 February2009. It is our submission that those firefighters oughtbe given every possible protection as part of the

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structure for the management of responding to fires infuture.

The evidence before the Commission is that theconcept of safety adviser is derived from US experience.Coroner Johnson in making findings in relation to theLinton fire watered down the US model to a limited extentin response to the submissions that were made by theparties. In particular, His Honour was, it seems,troubled by the concept of the safety adviser having aveto. What His Honour said about it is at paragraph23.5.61 of the Linton findings, which exhibit 546. IfI could ask for that to be brought up at(TEN.132.001.0636).

In the first complete paragraph on that page atthe top of the screen, the findings read as follows: "Asafety officer at a wildfire should have the ability toeffect an operational decision in limited circumstanceswhere that decision is reasonably likely to put the livesof firefighters at immediate unnecessary and unjustifiedrisk . Ideally, if time permitted, this would need to becarefully managed in conjunction with the incidentmanagement team to ensure that other consequences foroperations are balanced."

The principal opposition, as we understand it, tothe adoption of such a model in Victoria has been andremains a concern that giving a safety adviser, officer,whatever they may be called, a power of veto in thecircumstances such as those identified by the coronerwould detract from the notion that safety is everyone'sresponsibility. In other words, it is exactly the samesubmission that was made in response to the introduction

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of the concept during the course of the Linton inquiry.We say that that concern is baseless, just as the

concern that was expressed at the time of Linton has beenproved to be baseless. We say it for this reason:Firstly, there is no reason to assume that having a safetyadviser with a limited veto power in an incidentmanagement team would detract from the responsibility ofall on the fireground, and for that matter all in the IMT,to have concern for safety. We point out in oursubmissions that firefighters, crew leaders, sectorcommanders, division commanders all have both a statutoryand a common law responsibility to look after their ownsafety, to take reasonable care for their own safety, andalso for the safety of others affected by them.

We note that, so far as statutory responsibilityis concerned, that derives from sections 25 and 32 of theOccupational Health and Safety Act. Curiously the Statetakes issue with that. They say they don't accept thatfirefighters have the statutory and common lawresponsibilities that we identify they have.

Secondly, we have the experience of theUnited States at least in the form of the evidence that'sbefore the Commission about the experience in California.Commissioners will recall that Mr Streblow of Calfire wasasked about this very issue. Mr Streblow is the deputychief in the Sonoma-Lake-Napa unit of the CalifornianDepartment of Forestry and Fire Protection, mercifullyknown as Calfire. Mr Streblow's evidence is summarised byus at paragraphs 17.15 through to 7.18 of our submissions.

Mr Streblow was specifically asked about howfrequently the veto power was exercised by safety

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officers, in his experience, and his answer appears at7.17 of our submissions on page 23. He was asked bycounsel assisting, "Is it" - the power - "exercised often,in your experience? His answer was this: "One of thebenefits and why it is not is because the safety officeris standing side-by-side with the operations section chiefwhen they are developing the incident action plan and thecomponents of what tactics are to be used that day." Hegoes on to describe in more detail that experience, andthen four lines from the end of the quote he said this:"We use the tenet in our term that we tell everybody onthe incident is a safety officer, so everybody has theability and the responsibility to look after themselvesand everyone else." In other words, the Californianexperience would strongly suggest that there is noconflict between a safety officer with the powersidentified and the notion that safety remains everyone'sresponsibility.

The State says in response, "Well, Mr Streblow isone person and that's his experience. We say in responseto that: where is the downside to the recommendation thatwe propose? We say there are clearly benefits in having asafety adviser, or we would prefer the term "officer",with the full authority to, in what we would concede to berare examples, override an operational decision out of alegitimate concern for firefighter safety.

The Commission has before it evidence of one ofthe few incident control centres that had a safety adviseron 7 February 2009. The Commission will recall theevidence about the Bunyip fire, and we have detailed thatthe evidence before the Commission is that firefighter

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safety was well managed, that the balance betweenoperational concerns and safety concerns was struckappropriately by incident controller Nugent it was in thatparticular circumstance, based on the advice of hisadviser. Essentially what we are saying is what wepresently have is a somewhat watered-down version of theUnited States model. It's time that Victoria experiencedthe full position.

Just before leaving that topic, we note thatthere is a reference in the AFAC report at page378 - I don't need it to be brought up on the screen - butin the third dot point on that page there is a summary ofthe Australian experience with safety advisers and it isnoted that in the ACT, New South Wales and Tasmania, as at2005 when this report was written, three agencies providedfor a safety adviser having a limited power of veto overactivities. So there is already a precedent in Australiafor such a notion.

The final matter I wish to refer to briefly inrespect to firefighter safety is firefighter welfare,which we deal with in our submissions starting atparagraph 9.1. We note the evidence before the Commissionboth in the form of the obvious effect that the experienceof 7 February 2009 has had on so many firefighters, bothcareer and volunteer, that have given evidence before theCommission. We also note the evidence, particularly inthe witness statement of Ms Seach from the CFA, that theagencies have expended considerable resources and done alot of work to ensure that support is provided for thefirefighters both in relation to their appearances at thisCommission but also generally in relation to their lives

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in the aftermath of 7 February 2009.We note the expert evidence before the Commission

in the form of particularly the report of ProfessorMcFarlane from South Australia, in which he refers tostudies that have been done about firefighters and thelong-term impact on them of experiences such as fightingfires on days such as 7 February.

We don't propose a specific recommendation inrelation to this topic, but at paragraph 9.8 of oursubmissions we say the following: "The Commission has aparticular interest in the future health and welfare ofthe many paid and volunteer firefighters (and otheremergency workers) who responded to the fires on and after7 February 2009. The Commission urges the agencies todevote considerable resources in future to doing all thatthey are capable of to support their members in thisregard." We note that in the volunteers' submission thatis before the Commission that there is a recognition andan appreciation of the concerns as expressed by theCommission.

Unless there are any questions I can address,Commissioners, they are the submissions that counselassisting make on firefighter safety.

CHAIRMAN: Yes. Thank you, Mr Rozen.MR CLELLAND: I think it is only the State, Mr Chairman. Our

comments will be brief. The submissions that have beenprovided on behalf of the State respond to the submissionsof counsel assisting in full and we adopt thosesubmissions. Like most submissions, they will not improvewith repetition. We do, however, want to make or dealwith three aspects of our learned friend's submissions

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that he has made this morning.Firstly, we make the observation that on

7 February 2009, a day that our learned friend hasunderstandably described as being unimaginable and wewould say without parallel in terms of the intensity andspread of fires, one death of a firefighter was recorded.That was the death of Mr Shepherd. At paragraph 14 ofthe State's submissions we have set out the circumstancesrelating to the death of Mr Shepherd and I think it iswell understood that Mr Shepherd did not die whileresponding as a CFA firefighter.

Commissioners, estimates vary but Mr Beazley gaveevidence before this Commission, and I refer to paragraph106 of his statement, where he estimated that just CFAfirefighting personnel alone who responded to thebushfires on 7 February was approximately 16,000 and thetotal number of CFA firefighters who responded to allfires and incidents on that day was approximately 21,000.That does not take into account the very substantialinvolvement of DSE or its NEO partners in the firefightingresponse.

That is why we say at paragraph 28 of oursubmissions that it cannot be seriously put by counselassisting that it was only a matter of luck and extremebravery of firefighting crews rather than sound incidentmanagement on 7 February that resulted in there being thedeath of only one firefighter, being Mr Shepherd. Such acontention, in our submission, ignores the extensive andunchallenged evidence of Mr Esnouf and Mr Edgar which wesay amply demonstrates beyond a shadow of a doubt thatfirefighter safety is, has been and always will be of

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paramount importance to both agencies and is, as we putit, a priority that is lived, not merely espoused.Safety, Commissioners, is not a matter of luck or bravery.

The assertion by our learned friend Mr Rozen thismorning that the record of the agencies on 7 February isnot one of which they can be proud is vigorously rejectedby the State, given what everyone in this hearing roomknows about the conditions that prevailed on that day andthe circumstances in which those firefighters fought thefires on the firegrounds.

The second point we make, Commissioners, is inrespect of the safety advisers and the history of safetyadvisers. We at paragraph 31 of the State's submissionsrespond to the submissions of counsel assisting. We notethat it was clear from the coroner's recommendation thatthe safety officer was not to have a power of veto. Thedecision post-Linton by the agencies to adopt theso-called adviser model was a considered decision, it wasthe product of significant research, as we have set out inour submissions, and the decision was on the basis thatthe power of veto would lead or the concern was that itwould lead to a duality of responsibility and wouldretract from the responsibility that we say is enshrined,and that is that all people have responsibility forsafety.

Now, having said that, as we make clear atparagraph 34 of the submissions, the option of adopting asafety officer model with powers of veto should not beruled out. The door hasn't been shut. But we do go on tosay that any evaluation of whether there should be achange to the model would need to be informed by a proper

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and detailed understanding of the US experience. That isno criticism of the work of this Commission; we simply saythe evidence is not all in on the matter.

Commissioners, the last point we wish to make isthis, and it relates to the submissions that our learnedfriend made this morning in relation to backburns. Wewould submit, with all due respect to him, that there isan air of unreality about those submissions. TheCommission well knows the circumstances in which thedecision to light the backburn was made at Marysville. Itwas, contrary to an ill-informed observation made inevidence during the course of this Commission, not a firstresort at all; it was a last resort. Yes, there wasdiscussion between those on the fireground, or at least atKings Road and those in the Alexandra ICC, and although aformal approval may not have been given, it is clear thatit would have been, and one of the reasons for that isthat the person who was making the decision wasMr Williamson. There was universal agreement that ifMr Williamson, the most experienced and capablefirefighter that any of those in the ICC in Alexandra knewof, if he took the view that that was an appropriate thingto do at the time, then they would have endorsed andapproved that decision.

The situation in Kinglake is slightly different.Again, the Commission will recall the evidence.Mr Fitzgerald, for reasons that he explained in evidence,did not seek approval and again it cannot seriously becharacterised as some lighthearted decision made just totest it out. It was a last resort and, as Mr Fitzgeraldexplained to the Commission, a last resort taken as an

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attempt to protect the community, his community, ofKinglake.

Neither of those backburns provide a propervehicle, we would submit, for making any adverse findingsagainst those who were involved. That does not detract,however, from the State's submission as we put it thatthere should be a revision or investigation of protocolsin relation to backburns. We readily accept that. Butwhat we really want to emphasise is that neither of thosetwo backburns on 7 February deserves any criticism andindeed we submit that the Commission would well understandthe circumstances in which those backburns were lit.

Apart from that, as I say, we rely upon ourwritten submissions. We submit that they deal in adetailed way with each of those matters that have beenraised by counsel assisting both in their writtensubmissions and otherwise in their oral submissions today.If the Commission pleases.

MR ROZEN: Can I raise two matters in reply. The firstconcerns the Linton recommendations about safety advisers.Perhaps if that could be brought up, please. The simplestway I think would be in our submissions at page 20,counsel assisting's submissions on firefighter safety onpage 20.

Recommendation 10 from the Linton findings isthere extracted and I will just read the first threelines: "A safety officer at a wildfire should have thelimited ability to effect an operational decision and onlywhere that decision is reasonably likely to put the livesof firefighters at immediate unnecessary and unjustifiedrisk." It is my submission that the word "effect" may in

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fact be misspelt in that first line, a common enoughmistake made by many. It is my submission that what wasperhaps intended there was to use the word "affect" as inchange rather than "effect" as in make. That would makemore sense of the recommendation, particularly havingregard to where the word "decision" appears a second time.In other words, "where an existing decision is reasonablylikely to put the lives of firefighters at immediateunnecessary and unjustified risk," say approval of abackburn, to take an example, what was recommended thereis that a safety officer could affect or change thatdecision and have that limited ability.

So, it is my submission that, if that's right,and it is something I probably should have raised in myprincipal submissions and if Mr Clelland wants to saysomething in response, then of course he is entitled to,then that does provide a basis for there being a limitedpower of veto. That's what we are talking about when wetalk about a limited power of veto in the recommendation.

CHAIRMAN: It may be like the position in relation to mentor inthe same report, that when one looks at what's said in thelead-up to it it becomes clear what the meaning actuallyis or should be.

MR ROZEN: Context is everything, Mr Chairman.CHAIRMAN: I will look at the Linton report again in a little

more detail.MR ROZEN: We would just in relation to that invite

consideration, if I can find the reference, in the Lintonreport to paragraph 23.5.61. I won't ask for it to bebrought up now, but I would submit that the discussion inthat paragraph informs an understanding of recommendation

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10.CHAIRMAN: Yes.MR ROZEN: The second matter that I would like to briefly

respond to concerns the backburns. It was said by mylearned friend, or at least implied, that in oursubmissions we sought to characterise the decisions byMr Williamson at Marysville and Mr Fitzgerald at KinglakeWest as being lighthearted decisions to light backburns.Nothing could be further from the truth, so far as oursubmissions are concerned. The point we have madethroughout and continue to make is that what was missingfrom the decisions by both of those gentlemen, which wereclearly well intended, was input from the only people thathad the relevant information about fire behaviour andweather that would have dictated that the backburns oughtnot to have been lit having regard to the conditions onthe day.

It is all very well to say Mr Williamson was anexperienced firefighter. Of course he was. He was animpressive witness. The fact is he didn't know where thefire was. He didn't know what the incident managementteam knew about the horrendous fate that was about todescend on Marysville at the time he was lighting thebackburn. No backburn was going to stop the fire thatimpacted on Marysville. If there is one thing that wasapparent from the evidence the Commission has heard, itwas that. He deserved to be told that by the people whoeither knew or ought to have known it, and that is thepeople in Alexandra who had the overall position ofobserving the fire, had the benefit of the aerialobservations and everything else that the Commission has

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heard, some of which I will deal with in the next set ofsubmissions.

So that's the point, that it is not a matter ofcriticising the individuals, it is recognising that theindividuals were left in a horrendous position of makingdecisions without the proper support. Mr Clelland says,"We recognise the need for protocols." The protocols werethere. That's our point. The protocol was that theincident controller approved it and the bottom line oughtto have been, if they couldn't get the approval, don'tlight the backburn. It is of concern that the State seemsstill to be having difficulty grappling with that problem.

MR CLELLAND: I will take up the invitation, if I might. Wesay a full reading of recommendation 10 of the coroner'srecommendations in Linton makes it clear that what wasunderstood was that, where there was a disagreement by theincident controller, then the incident controller was ableto not follow the advice of the safety officer. Thatappears in the second paragraph. And although I might beperhaps responding to something I wasn't invited torespond to, I will make this observation while I'm on myfeet. It is worth remembering Alexandra ICC said, "Wewould have endorsed the decision of Mr Williamson."Mr Fitzgerald was the person who knew better than anybody,it would seem, whilst he was out on the fireground atKinglake, exactly what the weather conditions were andwhat was occurring. Indeed, we understand counselassisting rely upon the assessment, that assessment thatwas made by Mr Fitzgerald. If the Commission pleases.

MR ROZEN: The next topic that I seek to address the Commissionon - - -

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COMMISSIONER McLEOD: Would I be able to invite Mr Clelland torespond to a question I have of him, a second invitation?

MR ROZEN: Of course.COMMISSIONER McLEOD: It is really a point of clarification I'm

seeking. Much of the comment that you have made reallyaddresses circumstances that occurred on 7 February,particularly in the context of counsel assisting'sproposition that the safety officer should have a power ofveto. Against that background, would I be right insuggesting that nothing that you have said this morningreally takes away the acknowledgment that it was a seriousdeficiency for there not to have been safety officersappointed to the majority of the incident control teams on7 February, notwithstanding that was a mandatoryrequirement under the fire authorities' operatingprocedures?

MR CLELLAND: With respect, I think what you have put,Commissioner, is correct and we don't dissent from that.We do make the point, though, and I think counselassisting don't argue against this, that there is no basisfor saying that there would have been any differentoutcomes on 7 February had there been safety advisers. Wealso make the point that in the majority of incidentmanagement teams there were in fact safety advisers.

COMMISSIONER McLEOD: Albeit performing other duties.MR CLELLAND: Not necessarily performing other duties, but in

IMTs which weren't actually activated on the day. I thinkthat's rather the point.

COMMISSIONER McLEOD: Thank you.CHAIRMAN: I'm just looking at the clock.MR ROZEN: I was about to raise that issue. I'm going to be

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far briefer on this topic than I was on the previous one.So the options might be to deal with information sharing,which I would hope would take 15 minutes as far as I'mconcerned.

CHAIRMAN: If 15 minutes, let's go. If we are going to be muchlonger, I would say - - -

MR ROZEN: I'm on notice, Mr Chairman. Counsel assisting'ssubmissions are at (SUBM.506.001.0001). The State'sresponse is at (RESP.3000.006.0170). Counsel assistingpropose four recommendations in relation to the topic ofinformation sharing. Before I go to thoserecommendations, I should perhaps indicate at the outsetthat the topic of information sharing examines theevidence before the Commission about the provision ofinformation to incident control centres; that is,information coming up from the fireground, if I can put itthat way, and down from the IECC and in one case IFACC.We are also concerned with information flowing out of theincident control centres, particularly in the form ofincident action plans.

The recommendations that we propose are on page23 of our submissions. They are as follows:Recommendation 1 is that the fire agencies adopt the DSE'sincident action plan summary as the template that must becompleted within the first four hours following extendedfirst attack. Recommendation 2, the fire agencies mandatethat the incident action plan summary must be completedwithin the first four hours following extended firstattack and communicated to the fireground. Recommendation3, the fire agencies provide regular training to IMTstaff, whether new or existing training, that demonstrates

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the following: one, the importance of the firegroundpassing its observations to the IMT; two, the importanceof the IMT in requesting information updates from thefireground; and, three, how the communication of suchinformation is critical for the IMTs to effectivelydevelop and implement fire management strategies.Recommendation 4 is that the fire agencies must ensure aspart of preplanning that incident control centres areaware of all forms of support available to them from thestate control centre.

Our written submissions detail the evidentiarysupport we say exists in relation to providing a basis foreach of those recommendations.

The position of the State is that it accepts thatrecommendations 3 and 4 ought be made. Qualified supportis given to recommendations 1 and 2. In particular, whatdivides us in respect of recommendations 1 and 2 is thatcounsel assisting submit that it ought be mandatory thatan incident action plan summary be completed andcommunicated within the first four hours following thefailure of extended first attack.

The State accepts that the incident action plansummary ought be completed within the first four hours,but takes issue with it being mandatory, essentially.They would seek to qualify it by the inclusion of thewords "if it is practicable". The State points to theevidence before the Commission about the difficulties thatwere faced by incident management teams in producingincident action plans on 7 February 2009. Part of theexplanation for that is, in our submission, the complexnature of incident action plans that were expected at that

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time on 7 February 2009. The Commission has before it theevidence of the Redesdale fire where a summary form ofincident action plan was produced within the four hourtimeframe, and we have detailed the circumstances of thatin our written submissions. It is that template that weidentify as being an appropriate one to strike a balancebetween a comprehensive incident action plan and noincident action plan.

There are some issues of fact which unfortunatelyare the subject of disagreement in the submissions, on ourreading of the State's submissions. It would beinappropriate to deal with each of those, but there aretwo which are significant. We say that one can onlyproceed in relation to recommendations about informationsharing with a proper understanding of what the evidencediscloses about what happened on 7 February.

The first matter that is raised by the State isin paragraph 9.1 of its submissions at page 171. I thinkit is actually just on the next page. The State says,"Notwithstanding the previous submissions made on behalfof the State, it appears that the submissions of counselassisting on this topic repeat a number of inaccuratestatements regarding the evidence." There is then alengthy footnote which is essentially concerned with thequestion of whether Mr Cobb's observations about thespotting of the Murrindindi fire, which the Commissionwill recall he detailed for us, were conveyed to theincident management team.

We say the evidence is crystal clear that theywere not. We have detailed that evidence in oursubmissions at paragraph 2.7 and following on page 4 of

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our submissions. We quote from the evidence of Mr Miller,who Commissioners will recall was the incident controller,and he was unable to identify what process there was forMr Cobb's information and observations being reported backto the incident control centre. We also point out thatoperations officer Bowdern was unaware of Mr Cobb'sobservations.

What is now said against us in footnote 3 of theState's submissions is that the evidence shows thatMr Cobb was communicating with Mr Willans, who in turn wascommunicating with operations officer Bowdern. What seemsto be suggested there is that via that route Mr Cobb'sobservations were in fact conveyed to the incidentmanagement team in the form of the operations officer,Mr Bowdern.

It is therefore necessary briefly to refer yetagain to the evidence of Mr Bowdern on this topic. He wasasked in terms whether he was aware of Mr Cobb'sobservations, and this appears at transcript page 8437.At line 15 Mr Bowdern was asked by counsel assisting, "AndI take it you were not aware of his observations of thefire at this immediate time at the Alexandra ICC?---No,I wasn't."

"Whilst he was communicating with Mr Willans, doyou know who else that Mr Cobb was communicatingwith?---No. I believe he may have been reporting toGillian Pannan at the Marysville office, but I'm unsure,really."

"Can you offer any explanation as to why hisinformation would not be going through to the incidentcontrol centre?---No, I can't."

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That's the evidence. What makes it so surprisingthat this issue is raised in this way in the State'ssubmissions today is that we understood this issue hadbeen resolved as between the parties on the occasion ofthe submissions that were made about the Murrindindi fire.Commissioners will no doubt recall the submissions thatwere made by my learned friend Mr Myers on that occasion.In what was otherwise a very colourful submission to theCommission, Mr Myers said this at transcript 13690. Infact, at the bottom of page 13689 Mr Myers said this:"Concerning information gathering and sharing, which wasanother topic dealt with by Mr Rozen, there are just acouple of particular things that I wish to point out. Forwhatever reason, Mr Willans didn't convey the informationthat he had to the incident management team, and that'sthe fact. It may have been better if it had been conveyedto the incident management team, but it wasn't."

We say, with the greatest of respect, thatMr Myers got it absolutely right. That is the fact, andwe say that the State's submissions to the contrary noware surprising to say the least.

The other question of fact that seems to divideus is set out in the submissions of the State of Victoriaat paragraph 9.5, paragraph (d). This is in the contextof the State's submissions about the importance ofincident action plans to the proper management of fires.I won't reiterate those submissions. They have been madeon a number of occasions. I will note that the AFACsubmission in relation to firefighter safety makesreference in those two of the three fatalityinvestigations to inadequacies of incident action planning

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as a contributor to poor safety outcomes.At footnote 13 of the submissions of the State of

Victoria in support of the submission that strategicmanagement of a fire is not contingent on an IAP beingdocumented, the following appears: "The State notes thatthe IAPs prepared for Horsham, Redesdale and Narre Warrenwere all prepared after those fires were brought undercontrol and as such played no, or limited, role in thestrategic management of the fires in the early stages."

We have had cause to go back and look at theevidence concerning the Redesdale fire and it is simplywrong to say that the incident action plan was createdafter the fire was brought under control. The incidentaction plan, as the evidence establishes, was produced bythe incident control centre at 1746 on 7 February.Commissioners will recall that it had up-to-dateinformation about the early arrival of the wind change andthat was conveyed to those on the fireground,demonstrating of course the importance of a documentedincident action plan in achieving proper management of afire and proper management particularly of the safety offirefighters.

The evidence of Mr Deering, the incidentcontroller, is that the Redesdale fire was not broughtunder control until 7 am on the following day. Thatevidence appears at transcript page 9963, lines 23 to 27.We don't need to go to it. But to suggest that the firehad been brought under control prior to the time of theproduction of the incident action plan is incorrect.

MR CLELLAND: Can we just rise to assist our learned friend andthe Commission on this point, that we agree, with respect.

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That footnote should not include Redesdale. It shouldidentify Horsham and Narre Warren. So we concede thepoint.

CHAIRMAN: Yes.MR ROZEN: The final matter that I will make brief reference

to, because it really is relevant to this question ofwhether the recommendation ought to be couched inmandatory terms, is that what seems to continue to divideus is the importance of a documented incident action planto proper strategic management of a fire. We have pointedout on previous occasions what the evidence indicatesabout the differences between the management of fires suchas Redesdale, where there was a documented incident actionplan, with fires such as Churchill, where there was nodocumented plan. We have said that what the evidenceindicates is a lack of strategic management of fires wherethere was no incident action plan.

In paragraph 9.7 of the submissions of the Stateof Victoria the following appears: "Counsel assistingappear to suggest a necessary correlation between thedocumentation of an IAP" or incident action plan "and:(a) the adoption of appropriate suppression tactics on thefireground; (b) the likelihood of the fire being containedquickly; (c) the impact of the fire; and (d) firefightersafety." The submissions go on, "The State submits thatthe evidence does not support such correlations."

We strongly beg to differ. We say if there isone thing that the evidence about the various fires andthe management of them establishes it is that those fourmatters that are identified, with the possible exceptionof (b) because suppression of the fire particularly on

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7 February 2009 was not something that was going to beachieved by the preparation of a plan, but in terms ofother aspects such as the proper dissemination ofwarnings, proper information being conveyed to thefireground, appropriate resourcing decisions and the like,we say that they are all tied up with the disciplineinvolved in the preparation of an incident action plan.That was something that we understood had been more orless conceded by Mr Esnouf in the evidence that he gave onthis topic.

Just in passing, we note, without wanting tooverdo the references to Linton, that one of the coroner'srecommendations there and the findings were very stronglythat the absence of a documented incident action plan onthe day contributed to the circumstances in which the fivefirefighters died.

Unless there are any questions, Commissioners,they are the submissions I would seek to make oninformation sharing. We otherwise rely on our writtensubmissions.

CHAIRMAN: Yes, Mr Clelland.MR CLELLAND: We rely upon our written submissions and I don't

propose to go to them, Mr Chairman. Our learned friend,as I have already suggested, is correct to point out thatRedesdale should not have been included in that footnote.I don't need to say anything further about that.

With regards to the evidence of thecommunications between Mr Cobb to Mr Willans, who theCommission will recall was in the fire tower, and to theAlexandra ICC, what we submit is that a proper reading ofthat evidence, and we include in that Mr Willans' evidence

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at 3031 of the transcript, makes it clear that Mr Willanswas communicating with Mr Cobb, who was providing hisobservations to Mr Willans, and Mr Willans was thenpassing on his observations to Mr Bowdern. It reallymatters not whether Mr Willans was identifying them ashaving been the observations of Mr Cobb.

Can we simply refer the Commission to the witnessstatement of Mr Cobb at paragraphs 36 to 37 and thewitness statement of Mr Bowdern at 42 and 44. I thinkI have already given the Commission the page reference toMr Willans' actual evidence. If the Commission pleases.

COMMISSIONER McLEOD: Could I have another clarifying question,Mr Clelland?

MR CLELLAND: Yes, sir.COMMISSIONER McLEOD: In view of the experience with the

previous matter that was under discussion, the mandatoryappointment of safety advisers, and the experience thatfor good or bad reason that mandatory requirement wasn'tmet in a number of situations, in this particularcircumstance where I take it there is no disagreement thatit is highly desirable, if not stronger than that, that ina major fire after four hours that should be sufficienttime for some form of incident action plan to have beendeveloped and documented, that in those circumstanceswhere, with the best will in the world, if that's amandatory requirement, there might be occasions where itis just not possible to achieve that, to add "ifpracticable" after the requirement would seem to weakenthe strength of the requirement by encouragement forpeople to believe it's not a mandatory requirement,because I'm asserting that even if it is expressed as a

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mandatory requirement there may well be occasions wheresometimes for good reason it is not possible to achievethat and that those circumstances can be explained andpresumably understood, but that it doesn't seek to weakenan obligation that should be seen as a very importantobligation.

MR CLELLAND: Yes. With respect, the State agrees entirelywith what you have just said. The addition of those wordswas perhaps an attempt to make explicit what I think,Commissioner, you are suggesting is implied anyway; thatis, that if there are these highly unusual circumstanceswhere it is just not possible to complete a summary IAPwithin the four hours, that would be understood andaccepted. So it is really - - -

COMMISSIONER McLEOD: But are you suggesting that that would beincluded in the operating instruction, that it ought to becompleted in four hours, "if practicable", or that thereneeds to be a kind of underwritten understanding that thatwon't always be able to be achieved in every case withoutputting that proviso into the instruction and therebyweaken the strength of it?

MR CLELLAND: It is put in almost mandatory terms and, yes, itis a proposed SOP, but the reason it finds its way intoour submissions in the form that it does is because thereis, I suppose, an anxiety on behalf of the agencies thatpeople will actually devote attention to that rather thana more important task because it's in absolute terms. So,as I say, the State agrees entirely with what you havesaid, Commissioner, that it is more than highly desirable,it is extremely important, it should be done and should bedone almost without exception unless it is just not

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practicable.That's the reason for the insertion of the words.

When I looked at it, I wondered whether that was not infact an implied term anyway, that where it wasn'tpracticable the person who failed to do it wouldn't becensured. I'm reminded it is perhaps also a reflection ora recognition that such a summary may not be practicableand we think that counsel assisting's submissions don'tadequately recognise that, that there may well becircumstances, albeit very limited, where it is just notpracticable. That's the basis for it.

COMMISSIONER McLEOD: Thank you.MR ROZEN: I should just raise one matter arising from

Commissioner McLeod's question and it is that there isalready existing a recognition that it won't always bepossible to comply with an SOP in the form of SOP 1.01which I took the Commissioners to in the submissions onfirefighter safety. For completeness, the reference is atparagraph 7.5 of our submissions on firefighting. Just toreiterate, that SOP 1.01 says "It is expected that SOPs beadhered to unless exceptional circumstances apply." So,in my submission, Mr Clelland's concern on behalf of hisclient is met by an existing SOP.

It might be an appropriate time now to have abreak, Mr Chairman.

CHAIRMAN: Yes. Thank you, Mr Rozen.(Short adjournment.)

CHAIRMAN: Yes, Ms Richards.MS RICHARDS: Commissioners, before I launch into aerial

firefighting submissions there are a number of documentsto tender. I have a list. I understand it's been

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provided to you and to the parties. It is a bit of amop-up tender; there are all sorts of bits and pieces togo into various places.

The first document that we would like to tenderis a document prepared for the CFA by the Bushfire CRCentitled "Use of informal places of shelter and lastresort on 7 February 2009" which of course is relevant tothe topic of the "stay or go" policy. If we could tenderthat as part of exhibit 935.

#EXHIBIT 935 - (Added to) Use of Informal Places of Shelterand Last Resort (CFA.600.005.0317).

MS RICHARDS: There is then a supplementary statement and anappendix from a Colin Bertuch in relation to theBeechworth fire. I have been asked to tender that as partof exhibit 242.

#EXHIBIT 242 - (Added to) Supplementary Statement - ColinBertuch (VPO.001.089.0015). Appendix 3 - Site Plan(VPO.001.089.0017).

MS RICHARDS: There is then a document, a DSE land and firearea and district boundaries for which I seek a separateexhibit number.

#EXHIBIT 958 - Department of Sustainability and Environment -Land and Fire Area and District Boundaries(RESP.3001.024.0006).

MS RICHARDS: Then a summary of Australian bushfire statisticsfrom Emergency Management Australia, for which I also seeka separate exhibit number.

#EXHIBIT 959 - Summary - Australian Bushfire Statistics (FromEmergency Management Australia) (TEN.282.001.0001).

MS RICHARDS: There are three documents relating to theVictorian budget delivered last week. First is an extract

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of bushfire related budget initiatives, the second aresome budget papers that were put to Mr Cameron in hisevidence last week by the Police Association, and thethird is one that is not on the list. It was provided bythe State recently and it is called "Note on provisions inState budget". If they could all be tendered as oneexhibit.

#EXHIBIT 960 - Service Delivery 2010-11 - Appendix A - Output,Asset Investment and Revenue Initiatives(TEN.297.001.0001). Victorian State Budget 2010-11(TEN.299.001.0001). Victorian Budget 2010-11 Overview -Standing Up For Families - Securing Jobs(TEN.299.001.0003). 2010-11 Victorian State Budget -Service Delivery (TEN.299.001.0037). Service Delivery2010-11 - Appendix A - Output, Asset Investment andRevenue Initiatives (TEN.299.001.0040). Note onProvisions in State Budget (RESP.3000.006.0167).

MS RICHARDS: There is then a letter regarding the AustralianCurriculum Assessment and Reporting Authority report whichapparently relates to education and the school curriculumin relation to bushfires, if I could tender that.

#EXHIBIT 961 - Letter from Robert Randall (ACARA) to ValGostencnik (CORR.1004.0197).

MS RICHARDS: We have a report by the Australian Council ofState Emergency Services, the state and territoryemergency services national performance indicators datedNovember 2008.

#EXHIBIT 962 - State & Territory Emergency Services NationalPerformance Indicators - November 2008 (TEN.300.001.0001).

MS RICHARDS: Number 9 on the list, over the page, is a witnessstatement of Superintendent Ross McNeil of EMJPIC, if

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I could tender that.#EXHIBIT 963 - Witness Statement of Superintendent Ross McNeil

(WIT.3010.010.0134).MS RICHARDS: There is then a bundle of material at item 10

relating to the topic of arson, if I could tender thosedocuments as one exhibit.

#EXHIBIT 964 - Arson and Deliberately Lit Bushfires - Updateto Submissions of the Commonwealth of Australia(RESP.6012.001.0001). Attachment A - 2010 NationalBushfire Arson Forum (RESP.6012.001.0004). Attachment B -Bushfire Arson Prevention Handbook (RESP.6012.001.0005).Victorian Bushfires Royal Commission 2009 - Arson Chapterof the Final Report - Updates (CORR.1005.0018).

MS RICHARDS: I should just mention in relation to the systemicissue of mapping I am content to rely on the writtensubmissions on that topic and I understand fromMr Clelland that his client is also prepared to rest onthe written submissions.

CHAIRMAN: Thank you.MS RICHARDS: I'm told I understand correctly, which is always

nice to know.COMMISSIONER McLEOD: I won't be able to ask any questions on

those, Mr Clelland.MS RICHARDS: Feel free if there are any, only of Mr Clelland

of course. Moving to aerial firefighting. Commissioners,you have counsel assisting's submissions on this topicwhich set out in some detail the arrangements that are inplace in Victoria for aerial firefighting and deal withwhat's known about the effectiveness of aerialfirefighting, the procurement arrangements that we have inplace in Victoria, the composition of Victoria's state

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fleet, aviation roles within AIIMS, the preparedness anddispatch arrangements that we have in place in Victoria,the aircraft that were available on 7 February 2009, boththe standing state fleet and additional resources thatwere acquired, and where and how those aircraft weredeployed on the day.

There have been submissions received in responsefrom the State and late yesterday from the Commonwealth.Apparently there was something going on in Canberra duringthe week that delayed finalisation of the Commonwealth'sresponse.

There is general agreement from the State, whichis most intimately concerned with this topic, about thefactual content of the submission. There are just a fewpoints of difference that it is worth mentioning today insubmissions.

The first relates to an attempt that weundertook, based on dispatch lists provided by the StateAircraft Desk and evidence received by this Commissionduring the fire by fire hearings, to identify where thestate's aerial resources were deployed on Black Saturday .The result of that attempt is set out in appendix 1 to thesubmission, which lists the fires in order of ignition andidentifies which aircraft were dispatched to those firesand when.

We were a little surprised to find that we couldnot reconcile the primary evidence with the claim that wasmade in Mr Ryan's evidence, and you might recall heprovided us with a list of the 57 aircraft that wereavailable, 51 of which he told us were dispatched on7 February. According to the evidence that we have looked

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at, we could find evidence of 46 aircraft having beendispatched on that day, 41 of the 57 aircraft on Mr Ryan'slist and an additional five that we found from otherevidence.

We point out this discrepancy in our writtensubmissions at paragraph 3.6. The State has made noattempt to reconcile the primary evidence with the broadclaim that 51 aircraft were dispatched on 7 February. Weassume from that that the State accepts that the lowernumber is the correct one.

It is, to say the least, mildly troubling thatthe State has been unable to account for the use of thesevaluable and expensive resources on a day such as7 February. That said, the main point of undertaking thatexercise of working out where the available aircraft hadbeen dispatched was not to check the claim about how manyhad been dispatched but to look at how the system forallocating aircraft to fires worked on 7 February when itwas placed under considerable stress.

The results were interesting in two ways. Thefirst was that we found that some aircraft were notdispatched at all. The second was that there was adisproportionate allocation of aircraft between fires,with the Bunyip fire having a total of 11 aircraftallocated to it on 7 February, which was the same numberthat were allocated to the much larger Kilmore East fireand many more than were allocated either to theMurrindindi fire or the Churchill fire.

Just returning to the observation that there weresome aircraft that were not dispatched at all on7 February, the most notable among these was the smaller

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of the state's two infra-red line scanning aircraft,Firescan 350. The line scanning equipment on theseFirescan aircraft was described by Mr Alder as amongst themost sophisticated in the world for synoptic overviewmapping of fire incidents and the Commission, of course,has seen the product of these Firescan aircraft, mostnotably the scans that were done of the Kilmore East fireduring the early stages.

I asked Mr Ryan why Firescan 350 had not beenused on 7 February and he said it wasn't requested.Counsel assisting submit that it is quite inexcusable thata world class resource such as this one was not deployedon Black Saturday when, as we have heard during the fireby fire evidence, incident management teams were starvedfor information about where the fires were burning. Itwould appear that the reason why that world class resourcewas not deployed was because no-one asked for it.

The State says that this submission is notfactually based and that the more likely explanation forthe absence of a request is the limits on Firescan 350'soperational capability, i.e. it might not have been ableto fly in the extreme weather conditions on the day, andwe have heard that the larger of the two Firescan aircraftwas grounded for part of the afternoon. There is ofcourse no evidence at all for a submission that the reasonwhy the smaller Firescan aircraft wasn't used at all wasbecause of the extreme weather conditions. The evidenceis clearly and simply it was not requested. As I willcome to in a moment, that really does turn the spotlighton the system for dispatch which is at present entirelyrequest driven.

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The other observation that we draw from anexamination of the way in which aircraft were dispatchedon 7 February is that the Bunyip fire clearly had thelion's share of the aerial resources on that day. Theallocation of aerial resources to that fire was, wesubmit, out of proportion to the size of the other firesand the lives and assets at risk in those fires.

The State submits that this is explained by thefact that the Bunyip fire was already a going fire on themorning of 7 February. In our submission, that reinforcesthe point that we are making, that the current requestdriven dispatch system has serious shortcomings. Becausethe Bunyip fire was already going, aircraft had alreadybeen allocated to it before the other fires had startedand by the time those other fires started there had been asignificant commitment of the state's aerial resources tothe Bunyip fire. Now, that's not a bad thing that therehad been a significant commitment of resources to the firethat was going. That's what should occur. What did notoccur was a strategic redistribution of aerial resourcesas other more threatening fires broke out.

Only one aircraft was redirected from the Bunyipfire elsewhere and that was Helitack 341, the aircranethat we heard about from a number of the witnesses whowere in the IECC that day. No other aircraft wereredirected from the Bunyip fire to another fire, althoughthere is evidence before the Commission that repeatedrequests from the air attack supervisor for the Churchillfire, Mr O'Toole, for more resources were unmet becauseresources were not available, they were allocatedelsewhere. That was despite a general awareness,

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certainly in the IECC, that important communications andpower infrastructure were under threat from the Churchillfire after the wind change.

So, once again we submit that that very minorredistribution of resources when we say a much moresignificant redistribution of resources might haveoccurred directs attention to the system for dispatch andallocation of aircraft.

Counsel assisting have proposed threerecommendations under the heading of aerial firefighting.Those recommendations concern preparedness or dispatcharrangements or both. Before going to those, it'sprobably worth revisiting the evidence about the currentpreparedness and dispatch arrangements that the StateAircraft Unit has in place. These are set out in counselassisting's written submissions starting at paragraph 4.1on page 17 of the submissions.

We heard from Mr Ryan, and he provided a copy ofthe document, that the State Aircraft Unit has a standingpreparedness plan for aviation resources under which theavailability of aircraft increases with the level of firedanger. It's worth noting that the levels of preparednessused in this plan don't correspond with those that are setout in joint standard operating procedure J2.03, whichdeals with preparedness arrangements in IMTs based onforecast fire danger index. So there are two differentgrades, if you like, of preparedness level, one used bythe State Aircraft Unit, the other used by the rest of thefire agencies.

Under the State Aircraft Unit's preparednessplan, on days of extreme fire danger, which is when there

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are total fire bans in place in more than two areas, allaircraft in the state fleet are to be on maximumavailability, ready for takeoff within 15 minutes ofdispatch by the State Aircraft Desk. There is oneexception to the arrangements for pre-positioning aircraftor aviation personnel within the AIIMS structure whichconcerns aircranes, but the general rule is that regions,in the case of CFA, or areas, in the case of DSE, areresponsible for pre-positioning air operations personnelsuch as aircraft officer, an air attack supervisor, airobserver and airbase manager.

The aircraft officer is the only operationalaviation role that must be filled in a full level 3 IMTunder the joint standard operating procedure J2.03. Thatstandard operating procedure doesn't require any of theother roles to be filled, so that there is no requirementfor an air attack supervisor or an airbase manager to bein place on a day when full preparedness arrangements arein place. Without an air attack supervisor or an airbasemanager, it follows that there would be no support withinthe IMT structure for an aircraft and a pilot that theState Airdesk has on 15-minute standby.

There are, as I mentioned, some specialpreparedness arrangements in place for the aircranes,which are the Elvis-type helicopters, of which there areusually two in the state fleet. Those specialarrangements are that on days of high and extreme firedanger the State Airdesk pre-positions an air attacksupervisor and a Firebird type 1 helicopter with each ofthose two aircranes. This means that the aircrane can bedispatched along with an air attack supervisor in a

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supervision platform as a package and allocated to anincident both with the actual aircraft, the pilot and theoperational personnel in place.

We heard from Mr Ryan that aircraft are allocatedto a fire by the State Aircraft Desk on request. Therequest must be made by a reasonably senior person withinone of the fire agencies, either an operations manager oroperations officer within the CFA, or by DSE or NEOpersonnel at the level of an area duty officer. Once arequest is made, and only then, the State Airdesk willdispatch the most suitable available aircraft.

There is, the evidence reveals, a reasonablylengthy chain of requests that must be made to have anaircraft dispatched to a fire. In paragraph 1.8 of thewritten submissions we set out the chain of requests thatin fact occurred to have aircraft dispatched to theMurrindindi fire. During that chain of telephone callsthat had to be made, during which no-one tarried, it wasdone reasonably quickly, but the critical first 30 minutesof the fire passed by while those phone calls were beingmade. It is not only counsel assisting who have foundthis process to be a cumbersome one, and we note in ourwritten submissions the comments made by a pilot whoresponded to the end of season debrief questionnaire.These are reproduced at paragraph 4.6 of the writtensubmissions.

What this pilot said, which resonated with us,was, "Remember the job here is to fight bushfire.Everything else is second to that, it exists to supportthat cause. Red tape and bureaucracy seem to hold thingsback a lot. I feel there is too much time wasted in phone

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calls for initial deployment considering we are on15 minutes for a reason. An aircraft is most effective inthe initial hour of a fire starting. Why question itsuse? Two loads in the first hour could save weeks of workand money. The resource is there for that reason, we areon 15 minutes for that reason. The whole op just needs alittle streamlining." Those are comments that wewholeheartedly endorse.

Moving to the proposed recommendations, there arethree. The State supports each of them in principle buthas proposed revised wording for the recommendations thatwe submit would deprive them of much of their force. TheCommonwealth in its submissions received yesterday opposesproposed recommendation 3 as it is worded, but doespropose an alternative recommendation that I do intend toadapt.

Proposed recommendation 1 is set out on page 18of the submissions. It is that the State Aircraft Unitshould revise its standing preparedness plan for aviationresources to include the positioning of air attacksupervisors required to supervise fire bombing aircraft,air observers for reconnaissance aircraft and airbasemanagers at the airbases where those aircraft arepositioned.

The State has proposed an alternative inparagraph 13 of its submissions. It introduces thealternative that it has proposed by noting that thepreparedness and positioning of personnel is a function ofthe fire agencies rather than the State Aircraft Unit. Itis exactly that that the proposed recommendation seeks tochange, that the preparedness and positioning of aviation

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personnel should, we submit, be a function of the StateAirdesk rather than the regions and the areas, to ensurethat the operational personnel are in place next to theaircraft and that they can be dispatched as a package withthe minimum possible delay.

So what this new preparedness arrangement wouldmean would be that when a heavy or a medium Helitack or afire bomber is dispatched, it can be dispatched togetherwith the necessary aviation personnel who have been onstandby with the pilots at the airbase. The particularlyimportant one is the air attack supervisor. There is notmuch point having a Firebird on 15 minutes standby if theair attack supervisor is not at the airbase at the sametime. We submit the alternative wording proposed by theState would not achieve that integration of preparednessarrangements, but would leave the responsibility forhaving aviation personnel in place where it currently iswith the regions and the areas.

Moving to proposed recommendation 2, this appearsat the top of page 22 of counsel assisting's writtensubmissions. The State Aircraft Unit, we submit, shouldrevise its dispatch protocols so that aircraft may bedispatched without the need for a request from a dutyofficer or incident controller. In particular, therevised dispatch protocols should, firstly, enable thedispatch of aircraft to fires in identified high riskareas on days of extreme fire danger without requiring arequest from an incident controller or duty officer;secondly, require the State Airdesk to proactivelyidentify and monitor fires where aerial firefighting maybe effective; thirdly, advise the state duty officers on

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the allocation of aerial resources on the basis of wherethose resources will be most effective and in light of thelives and assets threatened by each fire; and, lastly,ensure that the state's infra-red line scan aircraft aredeployed effectively.

Again the State supports this recommendation inprinciple and there is welcome recognition in the State'ssubmissions of the need to streamline the existingdispatch processes with a view to minimising responsetimes. The sticking point between counsel assisting andthe State on this issue concerns what's been called inevidence "automatic dispatch" of aircraft. That isaddressed in the first dot point in the proposedrecommendation.

The State remains firm in its opposition toautomatic dispatch which, as Mr Ryan pointed out, isprobably a bit of a misnomer. It means dispatch direct toa fire by the State Airdesk without a request from aregion or an incident controller. But the State remainsfirm in its opposition to that under all circumstances.

What the State proposes is that the Commissionshould recommend that the State Aircraft Unit inconsultation with DSE and CFA investigate and developoptions for reducing the number of steps and time taken torequest and dispatch aerial firefighting resources. Wesubmit that the more detailed recommendations that we haveproposed should be made.

In the State's submission at paragraph 31 itlists the reservations that it continues to have aboutautomatic or direct dispatch of aerial resources to afire. These were canvassed in the evidence of Mr Ryan and

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I'll go to them again now. The reservations are that ifaircraft are dispatched without a request from an incidentcontroller or duty officer, there is an increased risk ofdispatching aircraft to a task that is of relatively lowerpriority. We say if the State Airdesk is the one makingdecisions they will be able to prioritise between fires byreference to the resources they have at their disposal.There is a risk of dispatching aircraft that areinappropriate to the task. Again, we can trust that theState Airdesk will know which aircraft it has and whichare most suited to the circumstances that presentthemselves.

There is an opportunity cost where aircraft whichhave been dispatched without the request by the incidentcontroller may not be immediately available for the nextfire that comes along, particularly if they are requiredto cool down for any period of time before they can berestarted.

In our submission, that reservation belies thatthe gatekeeper mentality displayed by the State Airdesk'sdispatch arrangements that we say needs to change. TheState Airdesk needs to be much more proactive in matchingthe aerial resources that are State resources withthe fires where they might be most effective.

The reservations go on over the page. The lastof these reservations really reveal an expectation that bythe time aircraft are dispatched there will be an incidentcontroller in place and that there will be ground crews onthe ground. As we have heard, particularly in evidencefrom Mr Streblow from Calfire, the effectiveness of aerialresources is at their greatest in the early minutes of a

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fire, often before ground crews can get there. That isthe point of having direct, very streamlined dispatchprocedures in place.

It's the case that other jurisdictions do useautomatic or direct dispatch protocols and they aresatisfied with the outcomes of those procedures. We heardfrom Mr Ferguson of the South Australian Country FireService about automatic dispatch arrangements in placearound Port Lincoln, Mount Gambier and in the AdelaideHills.

Mr Streblow also shared the benefit of hisexperience on this topic. If I might just go to part ofhis evidence. He was answering some questions from you,Commissioner McLeod, about the way in which aerialresources are deployed. You asked him whether it wouldnormally be the case that initial attack would mostcommonly come from aircraft. He said, "That's correct."This is at transcript page 18734, going over the page to18735, "... it is not uncommon for the aircraft to getthere. The air tankers fly with an air tacticalsupervisor, typically a fire captain or a battalion chief,in a lead aircraft and that aircraft is responsible forcoordination of the air tankers. So they may get therefirst. All of our pilots are also trained to be able totake independent action. It is not necessary that theywait for ground resources to get there if they feel thatmaking a drop or taking action would be the prudent thingto do."

In answer to the next question, Mr Streblow said,"They" - aircraft - "are most effective in initial attack.That is the phase of the fire where they are most

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effective. So in that first two-hour period of timebefore the fire typically goes extended, is the term weuse when the fire grows and needs significant augmentationof resources, we have found that they are significantlyresponsible for the suppression of our fires in that95 per cent range that we are looking at in 10 acres orless."

The State, on the other hand, says in itssubmissions that there is no evidence that automaticdispatch of aircraft results in reduced response times ormore effective use of aircraft. It is our submission thatthe evidence is there. It is available for comparison andanalysis if only the State would engage with that process.

In our submission, it is time for Victoria to trydirect or automatic dispatch arrangements, perhapsinitially in an area or two - and we highlight the Otwaysas a high-risk area in our submissions - so in a definedhigh-risk area or two in carefully defined circumstances,particularly on days of high fire weather.

We make the point that a trial of this naturecould be done very readily with available resources. Itrequires some flexibility about dispatch protocols. Itcould be done at a great deal less expense than thecurrent DC10 trial that's been undertaken in the last fireseason.

The last recommendation that we make concerns useof Commonwealth resources. There is a rather long backstory to this recommendation. The recommendation that'sproposed is that the State Airdesk should as part of itsroutine preparation for a code red day initiate a requestto the Commonwealth to put one or more AP-3C Orions on

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standby at the Edinburgh airbase in Adelaide inanticipation of the infra red line scan operationsaircraft in the state fleet being unable to continue forsome part of the day.

The State supports this recommendation inprinciple but says that the recommendation should berephrased to say that the State Aircraft Unit and theNational Aerial Firefighting Centre engage with theCommonwealth to develop an understanding of available ADFresources and develop a protocol where appropriate toensure such resources can be included in preparednessplanning. I must say I thought that that was whatrecommendations 11.1 and 11.2 in the interim report whichhave been accepted and implemented were all about.

The Commonwealth also suggests alternativewording for this recommendation along the following lines.The Commonwealth says the Commission should recommend thatthe State should consider incorporating in its planningfor responding to emergencies, such as catastrophicbushfires, key decision points at which requests may bemade to the Commonwealth and other sources for assistancebecause the State's own resources are likely to beexhausted; for example, the State Airdesk should as partof its preparation for the annual bushfire season identifythe decision point at which it may need to requestCommonwealth assistance because the need for infra redline scan operations aircraft is likely to exceed theoperational capabilities or capacities of the state fleetand other alternative fleets.

We submit that the Commonwealth's suggestedwording is much closer to the mark than is the State's.

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As I mentioned, the State's proposed recommendation reallydoes go over old ground. In response to therecommendations made in chapter 11 of the interim report,the Commonwealth has agreed to provide annual briefings tothe states and territories, including the fire agencies,about arrangements available to support jurisdictionsduring disasters such as bushfires. It did so in thelead-up to the last bushfire season, and we have heardevidence about that. The briefing included informationabout the range of Defence capabilities that might be usedto assist in detecting the location and spread of fires.This is all set out in the Commonwealth's delivery report.

The issue here is really whether and how theCommonwealth can assist Victoria in preparing for andresponding to bushfire as well as in recoveringafterwards. As the Commission is aware, there were veryextensive Commonwealth resources provided in the aftermathof Black Saturday, and those were welcome and those wereuseful.

The more difficult question that we have beengrappling with since last May is: can the Commonwealth andcan Commonwealth resources be used to help Victoria toprevent or minimise the loss of life and property in abushfire and, if so, how can that be done?

Recommendation 11.1 in the interim report wasdirected to this issue, which was about identifying waysin which Commonwealth resources might be applied morerapidly and effectively during extreme bushfires,including tracking fires. It is to this end that proposedrecommendation 3 in the aerial firefighting submissions isdirected.

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The Commonwealth confirms in its submissions thatit is committed to supporting jurisdictions to prepare forand respond to bushfires. There are, however, a number ofobstacles to achieving that outcome. The outcome that weare seeking is really that, where they are available,Commonwealth resources, particularly Defence resources, beused to provide assistance during the acute response phaseof a bushfire and not only in cleaning up the messafterwards.

Two principal obstacles for achieving thisoutcome are the practical problem that the AustralianDefence Force and the fire agencies use different systems.Some of these are pointed out in the State's submissions.They concern communication systems. They concern safetyprocedures. They concern work practices.

The second obstacle is that there are quiteextensive procedural requirements in place for requestingassistance set out in the Defence instructions on Defenceassistance to the civil community. Neither of thoseobstacles can possibly be resolved during an emergencyonce a fire is burning. The practical problems aboutdifferences in systems need to be worked out months inadvance. If Defence resources are to be used to assistthe State to respond to a fire before the worst of thedamage is done, then a request for assistance under DACC,the Defence assistance to the civil community, needs to beinitiated in anticipation of needing the assistance a dayor two beforehand.

We have established through the evidence heard inthis Commission that Victoria's capacity to obtain infrared images of fires may be exhausted in extreme weather

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conditions when the Firescan aircraft may be grounded.That's what appears to have occurred on 7 February. Wehave also established, principally through Major GeneralPower's evidence, that the Australian Defence Force has arange of aerial imaging capabilities and that the one thatmost closely matches that of the Firescan aircraft is theAP-3C Orions in Adelaide. Major General Power said in hisevidence that there was no reason why the Orions could notbe put on standby in anticipation of a code red day.Counsel assisting have taken that at face value and hencethe proposed recommendation.

It would appear from the Commonwealth'ssubmissions, however, that there are plenty of reasons whythat should not occur, they say. We are back to therequirement to request an outcome, in this case infra redaerial imaging, rather than a specific asset that we knowexists, that may well be available and can do the job.With respect, that approach saying, "Do things by thebook, as they were before 7 February; we have not revisedour protocols," is contrary to the intent ofrecommendation 11.1 in the interim report.

That said, I propose that recommendation 3 berevised to pick up the wording that the Commonwealth hasput forward, perhaps in the following way: the StateAircraft Unit should develop a detailed understanding ofthe Commonwealth resources that may be able to provideaerial infra red imagery during bushfires, in particularthe AP-3C Orion based at Edinburgh airbase in Adelaide,and should include these resources in its preparednessplanning. In particular the State Aircraft Unit shouldincorporate in its standing preparedness plan for aviation

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resources the decision point at which it may need torequest Commonwealth assistance because the need for infrared line scan operations aircraft is likely to exceed theoperational capability or capacity of the state fleet andother available aircraft.

One final matter that I'll refer to briefly isthe trial of the DC10, the very large air tanker, that weheard some evidence about. In our written submissions wenote the very significant cost of that trial. We note anumber of serious limitations in the use of that aircraftthat were known before the trial commenced. Weacknowledge that a firm judgment about the usefulness ofthe DC10 or similar very large air tankers should awaitthe Bushfire CRC's evaluation report. But at present weare inclined to agree with Mr Alder's observation that itis a very expensive way of filling a relatively smallniche. As we submit at the end of our writtensubmissions, the funds might be better spent elsewhere.

So, Commissioners, unless there are anyquestions, those are the matters I wanted to address inoral submissions. I believe that Ms McLeod wants to makesome submissions on behalf of the Commonwealth. So itmight be appropriate if she went before Mr Clelland.

MS McLEOD: If the Commissioners please, we have only respondedto the systemic submissions on aerial firefighting and notthe other submissions in the tranche, as you will haveobserved. The only reason we have addressed the aerialfirefighting and not the other submissions are that ofcourse the State has primarily operational responsibilityon those other topics.

The first issue concerning recommendation 3 on

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this topic which is, as it currently stands in the writtensubmissions, directed to State requests for the AP-3Cs,the Orions, being triggered by a code red day. AsMs Richards noted, there are general issues that arisewith this and there are also the specific issues about therequesting of infra red aerial resources.

I didn't actually get a complete note of thealternative recommendation she just put forward, butI think what I'm going to say probably addresses thealternative that's just been put forward and therecommendation as it currently stands in the writtendocuments.

The current written submission recommendation 3is not practical and appropriate, the Commonwealth says.If there is to be a trigger point for the request ofCommonwealth resources generally, it needs to be at apoint in time or a decision point when the State'sresources are likely to be exhausted. That doesn't meanof course that when you declare a code red day you can'tstart to have conversations with the Commonwealth aboutwhat's on the ground, what's available, what's notrequired for other operational requirements.

However, to suggest that the code red day be thetrigger for having an asset, a Defence asset particularly,tied up on the ground when it might equally be requiredfor other operational purposes, including otheremergencies, around Australia is not appropriate. What wesuggest is that, if the State refines or develops thesedecision points as a crisis escalates, that will bothsatisfy the need for advanced warning and meet theconstitutional arrangements whereby the State has primary

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operational responsibility for this response.The second issue concerns the framing of the

request. The framing of the request to the Commonwealthfor assistance, as we have heard from Mr Pearce and MajorGeneral Power, is not for a specific asset such as theAP-3C but rather for an effect or outcome. In this casethe concern is for the support of the State ability toobtain infra red imagery.

But, talking generally, the arrangement worksbest this way because a specific asset may not beavailable. It may be required in other places. It may beunder maintenance. It may not be the best asset to meetthe needs of the State at the time. So the reason that isthe more practical way as well as the current arrangementis that is what works best.

It also permits flexibility for the Commonwealthto meet its own operational needs and provide otherassistance with an asset that might be better suited atthe time. If we are talking about the Orions, forexample, there may be another way to achieve infra redimagery that is more appropriate at the time.

That's why our alternative recommendationaddresses the general matter; that is, that the Stateshould consider incorporating in its planning foremergencies, such as catastrophic bushfires, key decisionpoints at which point requests may be made for assistancebecause the State's resources are likely to be exhausted.So that's the general suggestion we make.

As a crisis escalates, there is a point in timeat which you look and say, "We can look ahead and say, 'Wecan see our resources will be exhausted in, say, two or

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three hours time. That's the time we initiate theconversation or the request for resources.'" That doesn'tpreclude a conversation happening the day before, a fewdays before to say, "We have a code red day coming up. Weneed to have a conversation with you," which is in factwhat occurs now with the liaison officers.

Also there can be then, in respect of thespecific asset, the briefings and discussions beforehandabout those decision points because of the need for infrared line scan operations aircraft of the State beingexceeded or unavailable. So we have tried to address bothof those, the general and the specific, in our alternativerecommendation.

The alternative recommendation of the State isnot appealing to us either because it is not appropriateto assume in state planning that a Commonwealth asset willbe available. And that's the bottom line. You can't inthe State's own planning, and this of course applies toany state or territory, assume in your preparednessplanning that an asset will be available. It has to be ameasure of last resort and there has to be a preparednessfor that asset not to be available for all the reasons wehave set out.

The third issue concerns information orsituational awareness. In our submissions we haveresponded by reminding the Commission that theCommonwealth has initiated the twice-yearly briefings, asMs Richards pointed out, that were the subject of theinterim report. The first of those occurred at the end ofSeptember last year, with additional jurisdictionalbriefings being offered to the state and territories.

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Our written submissions also addressed theimportant role of the liaison officers in terms of thesituational awareness of agencies of the State and theCommonwealth.

The last matter we address in our writtensubmissions concerns information that we have provided toinform the Commission of the progress of an initiativeannounced in December 2008 by the Prime Minister. TheCommonwealth has heard evidence about the operation of theAttorney-General's Department coordination centre, whichis a 24/7 coordination centre, as well as the Defencejoint operations command and the new parliamentarybriefing room at Parliament House.

What we address in our submissions is theprogress of the Australian government's crisiscoordination centre, which will come on-line in early2011. That will be a 24/7 facility, which will be acentral point of information for consolidation,verification of all hazards information supporting a wholeof government response. We address that in paragraphs 11and 12 of the written submissions.

That will enable strategic decision making duringa national crisis by facilitating a multi-agencycollaboration and information sharing. While I'mmentioning that, I should tender the attachment to oursubmissions which is a summary of that initiative. It is(AGD.915.0001), "Summary of the Australian GovernmentCrisis Coordination Centre".

#EXHIBIT 965 - Summary of the Australian Governments CrisisCoordination Centre for Victorian Bushfires RoyalCommission (AGD.915.0001).

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MS McLEOD: Subject to consideration of the proposal that wasjust put forward by Ms Richards, which I think I haveprobably addressed and picked up most of our key concernswith it, there may be something we wish to advance furtherto the Commission. We can do that probably by way of awritten submission.

CHAIRMAN: Yes.COMMISSIONER McLEOD: Could I ask a question, Ms McLeod?MS McLEOD: Yes, certainly.COMMISSIONER McLEOD: There are issues of timeliness and also

the formulation that you put forward which seemed to me atfirst glance to be simply a return to what's been ahistoric arrangement; that is, when the State's resourcesare depleted, the Commonwealth will listen to a plea forassistance. Now, if the use of some of these moresophisticated facilities are to be exploited to theirmaximum utility, issues of timeliness and preparedness arecritical.

Are you confident that that formulation that youhave put forward enables those significant requirements tobe able to be satisfied with appropriate prior discussionsand arrangements, preplanning arrangements, such that ifthere is an urgent requirement that emerges it is possiblefor the asset, with the Commonwealth's approval obviously,to be deployed with a minimum of lost time in negotiation?That's the key to the issue, I think.

MS McLEOD: It depends on two things. The first is the qualityand quantity, if I can put it that way, of thecommunications beforehand: the briefings about what assetsare available generally before the fire season starts; thecommunications in the lead-up to days of high risk so that

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there is situational awareness on both sides about what isavailable and what is likely to be needed. So that's thefirst thing. It depends on the quality of thosediscussions. We say what is in place will assist withthat. Providing those briefings continue as is planned,there will be a greater quality of information sharedbetween the State and Commonwealth about those things.

The second thing is that it depends on thequality of the decision points; so if the decision pointsare met as the crisis escalates, but not at the time thoseassets are exhausted. That's where the delay comes. Ifthe State looks and says, "We have exhausted our assets.Now we will ask for help," and in this case the requestfor assistance came in the early morning of 8 February,then there is the time lost.

If the request comes as the crisis is escalating,we know the State might consider, "We will run out ofaerial line scanning because of the number of fires or theintensity of fires or smoke or whatever else it is,whatever else are the key triggers for that decision pointto be reached; we know we will run out of resources and wewill need help in whatever time it is or whatever theother triggers are; we need to start having theconversation with the Commonwealth now," then that willactually save time. That will be an improvement on whatthe formal arrangement is now, that the State must exhaustits resources before asking for help. That's certainlythe spirit in which the assistance is offered by theCommonwealth.

COMMISSIONER McLEOD: Are you able to put a figure, as anindicative figure, as to the minimum elapse of time that

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might occur in ideal circumstances from the point ofrequest to the point of an asset being airborne?

MS McLEOD: I only wish I could, and of course it depends onthe asset and its state of readiness.

COMMISSIONER McLEOD: Are you talking about half an hour or twodays?

MS McLEOD: I can't answer that question for you, and it woulddepend entirely on the asset and where it's coming from.

COMMISSIONER McLEOD: I think you know what we are talkingabout, roughly. If it becomes apparent, for argument'ssake, that the State's much smaller and perhaps in somesenses from an airborne point of view more limited linescanning facilities are unable to fly such that it becomesobvious that something that is bigger and can fly higherand still have the capacity to produce information isrequired, from that point can you speculate on how muchtime would be needed before that asset could potentiallybe available under your formulation?

MS McLEOD: I certainly wouldn't like to speculate, but I willjust check whether Major General Power did address thequestion, because he may have been asked specificallyabout it. He wasn't asked, and I would need to getinstructions about that, if we are talking about theOrions. I do know he said it was a relatively shortturnaround to get the Orions from the base in Adelaideacross to Victoria. An hour to Melbourne, an hour twentyto Sale, I think he was asked about.

COMMISSIONER McLEOD: Including prior preparation, becausethese things don't just go as soon as they're asked to go?

MS McLEOD: No, and they may be out of maintenance and they maynot have crews available or equipment set up and so on.

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COMMISSIONER McLEOD: They are critical issues, aren't they?MS McLEOD: Yes, they are. The other thing that needs to be

addressed is I'm not familiar with the State's decisionpoints as they currently stand, and it would depend to adegree on what those trigger points were and our abilityto respond to that. So if the trigger point came fiveminutes before the assets were exhausted, then obviouslythat would be insufficient time. You might get somebodyon the phone, but that would be most likely insufficienttime.

COMMISSIONER McLEOD: You didn't confirm whether or not yourexpression is simply a re-expression of the longstandingpolicy. I sense that it is.

MS McLEOD: I believe not, because under COMDISPLAN therequirement is that the State's resources be exhausted.What we are contemplating here is advanced request. Now,the constitutional arrangements are that, given the Statehas primary constitutional responsibility for theseissues, it must exhaust its assets. But what we aresaying is, "In order to assist the states and territorieswith these issues, if you reach the point where thedecision point is reached then you can get on the phoneand tell us." In other words, "If you anticipate thatthat will be the case at a point in time, tell us now."That is a move. If the Commission pleases.

MR CLELLAND: Commissioners, the State submits that it istolerably clear from the evidence, and we have made thepoint on several occasions in our written submissions,that just on the basis of the flying time involved on7 February the dispatch of aircraft and the arrival ofaircraft to conduct firebombing over the major fires,

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including Kilmore and Murrindindi, would still have seenthem arriving after those fires were out of control. Asyou heard from the witness Mr Alder, by the time hearrived over the scene of the Kilmore fire on 7 Februarythe only kind of attack that was possible was not directattack on the head of the fire but rather attack on theflanks of the fire.

Commissioners, the submission of counselassisting regarding the suggested discrepancy betweenMr Ryan's summary of dispatch for 7 February 2009 asopposed to the dispatch lists was sought to be dealt within correspondence between the State and counsel assisting.The position of the State is that Mr Ryan's evidence wasan accurate statement of the aircraft dispatched on7 February. What was communicated in the State's letterof 14 April to counsel assisting was that the dispatchlists were not a complete record of aircraft which went tothe fires and were in fact a record of what had happenedat the State Airdesk.

Now, we are not sure that that letter is actuallyin evidence. If it is a point that is to be persistedwith, we would ask that that letter actually be tenderedbecause, as I say, the State's position was that weexplained that those dispatch lists do in fact containinaccuracies.

On the topic of the line scan aircraft and thenon-deployment of the smaller infra red line scanaircraft, the State has made the submission that thatsubmission of counsel assisting is both unnecessary andnot in fact factually based. As it transpired on7 February, of course the primary line scan aircraft was

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grounded for a considerable part of the afternoon due toweather. Counsel assisting is correct in saying that theevidence was that the second line scan aircraft was notrequested. Our submission is simply this: it is highlylikely that the reasoning for that was the conditions onthe day. It would make little sense to simply deploy theline scan aircraft if it was not for an identifiedpurpose.

In terms of the suggested disproportionate numberof aircraft that were deployed to the Bunyip fire, theState deals with that in paragraph 11 of our submissions.I don't think that I really need to go into that in anyfurther detail. We say the explanation for that is clear.

In terms of the recommendations, the State'sresponse to recommendation 1 as proposed by counselassisting is simply this: in its current form or in theform proposed by counsel assisting, the State says thatthat would have the effect of actually involving that sortof support for every aircraft in the fleet. The proposedvariation on the recommendation is really to ensure thatthose sorts of resources are provided or are in positionin accordance with the risk in the areas covered by theaircraft. So that's really the reason for what is said tobe the departure between the State and counsel assistingon that matter.

We say that it makes good sense that one wouldnot have air attack supervisors, air observers and airbasemanagers positioned with every aircraft in the fleet, evenwhen they are in an area where they weren't to be deployedor where it was remote or unlikely that they would bedeployed.

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In respect of the automatic dispatch, if we canjust deal with that briefly. The submissions of the Stateon this matter are set out at 24 and following. What wesay is that the considerations in terms of so-calledautomatic dispatch are not simply a matter of timeliness,that there are other considerations. We say thoseconsiderations are far more complex than has beensuggested.

We point out at paragraph 29 that there is noevidence that automatic dispatch of aircraft results inreduced response times or more effective use of aircraft.In particular in spelling out the State's reasons for theposition we adopt at paragraph 31, we point out this inparticular at 31.3, on 7 February there was a particularneed to ensure that where aircraft were beingdeployed that that was absolutely necessary and thataircraft were being deployed to the highest priorityincidents, particularly where fire ignitions wereoccurring within a short period of time.

We point out that on 7 February there were 592grass and bushfires, 47 of which had the potential tobecome "very severe fires". If the State Airdesk haddispatched aircraft to all fire events without the requestby the incident controller, it is highly likely that theState's aircraft resources would not have been allocatedin the most effective manner.

What we understand to be the proposal is that theState Airdesk would simply make a decision to deployaircraft to a fire without reference to or without arequest being made by the incident control centre. Whenone understands all the other issues that are involved in

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deployment of aircraft over firegrounds, particularly whenyou have fire crews working on those firegrounds, we wouldsubmit that it is not as simple as simply saying, "Get aplane there quickly, and the quicker you get there thebetter outcome you are likely to achieve." We have goneto some lengths in our written submissions to spell outjust what those other considerations and complexities are.

Commissioners, what we would readily concede isthat, insofar as any otiose or unnecessary steps in theprocess can be removed in order to streamline it, thenthat is certainly something the State would embrace. Butour fundamental position is that there still needs to be acoordination through the State Air Unit.

Finally, listening carefully to the discussionregarding proposed recommendation 3 and having heard theformulation from Ms Richards while she was on her feet,our submission is really this: there is a greatwillingness on behalf of the State to engage in dialoguewith the Commonwealth about what had been described asappropriate decision points, and the identification ofthose key or appropriate decision points is a matter ofimportance.

What also needs to be borne in mind, and weunderstand that the Commonwealth endorses this, is ofcourse the resourcing or the availability of thoseresources and determining in advance just what resourcesare available. What needs to be developed, we wouldsubmit, are a series of protocols such as those that havebeen suggested. So really the State's position is that itis certainly willing to have that dialogue with theCommonwealth and welcomes the Commonwealth's willingness

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to take part in it. If the Commission pleases.MS RICHARDS: Just two things in reply. The letter of 14 April

that Mr Clelland referred to is document (CORR.1004.0080),and complete his desire to tender that letter to completethe record. I'm not sure that it does explain thediscrepancy, but we will put it in the record and have alook at it.

CHAIRMAN: That is exhibit 966?MS RICHARDS: Or it could be part of the aerial firefighting

tender bundle. There was an aerial firefighting tenderbundle that was I think back in the 800s. If we couldjust say in the aerial firefighting tender bundle, and Ithink we can identify the exhibit number later.

#EXHIBIT 859 - (Added to) Victorian Bushfires Royal Commission2009 - Dispatch List (CORR.1004.0080).

MS RICHARDS: The other matter that I wish to address in replyconcerns the question of automatic or, as I have tried tocall it, direct dispatch. What the State says, andMr Clelland drew attention to the submission at paragraph31.3 of its submissions, is that on 7 February there was aparticular need to ensure that aircraft were beingdeployed to the highest priority incidents. Counselassisting could not agree more. But the existing dispatcharrangements did not do that. They were request driven.A request from an incident controller for aerial supportis not determinative of the priority that should be givento a particular fire or what aerial resources should beallocated to it.

The recommendation that counsel assisting proposedoes envisage a role for direct dispatch of aircraft bythe State Airdesk as part of a package which would see the

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State Airdesk taking a much more proactive role inidentifying fires where aerial support will be of mostassistance and in allocating aerial resources to thehighest priority fires, not persisting with the currentrequest driven system that we have in place at present.

Commissioners, unless there are any questions,I think that concludes the submissions on aerialfirefighting.

CHAIRMAN: Yes. We will adjourn now until 9.30 on Monday inthe annexe.

ADJOURNED UNTIL MONDAY, 17 MAY 2010 AT 9.30 AM.

the attached transcript, while an accurate recording of...

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