information and security 3

INFORMATION AND SECURITY 3

Volume III: Establishment and Operation of the Commission

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The events of 7 February 2009 are part of Victoria’s history. The work of the Commission forms part of that history and will be of political, policy, social, community and legal significance long after the Commission has concluded. The archival and historical legacy extends beyond the Commission’s reports and hearings to the record of those individuals and communities affected by the fires. In particular, the documentation of the community consultations, the public submissions, and the lay witness statements provide a unique insight.

The Commission took seriously its statutory and moral obligations from an archival and historical perspective. It also attached high importance to its duty to those who engaged with it to respect their contributions, privacy and the requirements of due process.

In practical terms, the Commission needed efficient and secure information systems to manage the large volumes of materials it produced and received, as well as a safe and secure physical environment in which to work. Consequently, the Commission made a major investment in a stand-alone information technology network and secure systems and facilities and from the outset planned for the archiving of its records.

3.1 InformatIon

The Commission handled an extremely large number of records, many of them sensitive or confidential. It was crucial that efficient systems be developed early and maintained properly so that the Commission could organise the material sensibly to maximise effective use of it, use the material during the hearings and the report preparation process, and archive the material at the end of the Commission.

The Commission decided to be an electronic Commission to the greatest extent possible, the grounds for this being a desire for practical efficiency and broad accessibility.

RecoRds management 3.1.1

Early in its existence the Commission developed a business classification scheme to provide an organisational framework for all Commission information. This helped with daily management of access to materials, as well as with security. It also helped to identify records to be transferred to the state archives held by the Public Record Office Victoria at the conclusion of the Commission.

The scheme was based on the Commission’s core functions, rather than on work groups or organisational structure, and it supported collaboration and information sharing throughout the organisation. Initially implemented on the shared file server, the scheme was later transferred to the document management system that was introduced in August 2009 as part of a general desktop software upgrade. The document management system was used for storing and managing all internally generated documents. Within it, documents were generally available to all sections of the Commission. Access was restricted if there was a business need or material had a higher security classification.

Staff were able to gain access to documents from within desktop applications and from a web-based portal that also served as the Commission’s intranet, providing organisational and other useful information.

While the Commission was in operation it was not subject to the Victorian Freedom of Information Act 1982, but records will be subject to the Act once the Commission ceases operations and the records are transferred to the custody of a successor agency. In recognition of this, the Commission established records management systems that would not only facilitate its operations but also support a successor agency in readily meeting its Freedom of Information Act 1982 obligations.

InfoRmatIon management systems and seRvIces3.1.2

From the outset it was clear that information management systems and services would be an integral part of the Commission’s work. They needed to be user friendly, sturdy and able to facilitate the rapid processing of documents generated in the Commission or provided to the Commission by other parties and the public. They also needed to cater for desktop access to information within the Commission and the hearing rooms, for parties’ access to exhibited material, and for archiving at the end of the Commission. All this needed to be done with due regard for document security.

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Information and security

case management seRvIces 3.1.3

As noted in Chapter 2, document management for the directions hearings and the Commission’s first three weeks was provided by Corrs using the Ringtail™ system. For the transition from Corrs to the Commission’s systems, an implementation plan was mapped out to integrate the required IT hardware and information management systems and services provided by e.law.

e.law had five weeks from the time of its appointment to be ready to provide full court operator, document management and transcription services. Achieving this was not easy: among other things, the required hardware could not be delivered by the original supplier, and an alternative supplier had to be found at short notice.

In addition, the initial system for saving internally generated documents was established on a shared file server rather than the designated document management system. This made it harder to track and locate documents. It also made it difficult to change individuals’ practices so that they could work within the Commission’s records and document management policy. In time these difficulties were resolved.

The main features of the information management systems and services e.law provided are described in the following sections.

casevantage

CaseVantage is a specialised case management system that allows large volumes of documents to be managed efficiently. All hard-copy documents received by the Commission were bar-coded, scanned, objectively coded, and loaded into CaseVantage’s searchable database. The Commission also received from most parties material that had already been digitised, and this too was loaded into CaseVantage.

e.law customised CaseVantage with specific fields, allowing information to be categorised to reflect the Commission’s needs. The system was used to search, identify and analyse material created and received and to build up the documents required to support the investigative work and the hearings.

On 2 June 2009 the Commission issued Practice Note 2, ‘Producing material to the 2009 Victorian Bushfires Royal Commission under summons or by way of a submission’, which detailed the standards and practices parties were expected to adopt in order to facilitate speedy exchange of electronic records between the Commission and the parties.

Figure 3.1 shows the flow of material through the Commission’s document management system.

figure 3.1 document management flow

Source: e.law Asia Pacific.

Material produced by parties(compliant with Practice Note 2)

Hard copy processing Electronic processingOR

Storage Material received or lodged with registry

Barcoding Acquisition and/orextraction

ScanningDe-duplication

Electronic processing

Upload to CaseVantage

Subset to e.trial

Subset to web

Delimiting

Data entry


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e.trial

e.trial is e.law’s exhibit and evidence management system used for presenting documents in a hearing room. Documents held in CaseVantage that were scheduled to be tendered during the course of hearings were progressively uploaded to e.trial. This allowed the Commission and the parties in the hearing room to have immediate access to exhibited material.

Exhibited information could also be made securely available to parties, remotely and immediately. Because of the restrictions on some parties’ leave to appear, e.law developed a methodology whereby individual documents could be served selectively, thus restricting them to those parties with leave to appear for the relevant term of reference. The Commission also used e.trial to serve on the relevant parties notice of documents that would be used in hearings. This allowed for the timely delivery of large volumes of material, which was essential to support the hearings.

The Commission provided at least one licence to use e.trial to each party and more for larger parties. A variation to the original e.law contract was signed to allow e.law to provide additional licences to those parties that required more licences at the parties’ own cost, which was a set price per licence.

It stRuctuRe and desIgn 3.1.4

The Commission met its IT needs by calling on a variety of hardware and software vendors. The Commission’s IT provider, DiData, designed and built the network and provided ongoing maintenance and desktop support services. (Appendix I shows the Commission’s IT architecture in diagrammatic form.) Server virtualisation technology was used extensively. This minimised the number of physical devices required and provided disaster recovery options—which were ultimately used.

The standard operating environment found on each desktop computer and laptop was locked down in accordance with the Commission’s security requirements to reduce the risk of exploitation and ensure the protection of sensitive material. The standard operating environment also meant that if problems occurred with a workstation, the workstation could be quickly rebuilt without affecting the overall network. Each laptop had full device encryption deployed.

To reduce the chance of losing sensitive data, workstations were protected by antivirus software. One of the prime areas for potential loss of sensitive material and security compromise was the email system: several different controls were implemented to minimise the risk of exposure, and all email received from the internet was scanned for viruses and malware.

All internet traffic was also scanned for malware and viruses using a forward proxy solution, which put an interface between the workstations and the internet for extra security. This device also enforced internet content controls that limited the use of categories of internet content known to pose high risks of corruption, such as webmail, to further limit the Commission’s vulnerability to loss of sensitive data.

A system-wide back-up occurred nightly and copies of the back-up tapes were stored in a secure facility off site to minimise the risk of data loss and provide recovery if required.

As a result of these measures, the Commission had secure and reliable infrastructure with sufficient redundant capacity to cope with the volume of data and to protect the network if damage occurred. The resilient architecture, technical ability, and on-call 24-hour support allowed for the operation of services without concern about the underlying IT infrastructure.

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aRchIvIng 3.1.5

It was evident from the outset that the Commission’s records would be an important part of the public and historical record of the State. This is true not only for its publicly accessible records, such as reports, exhibits and transcripts, but also for the records of the Commission’s internal processes and inquiry.

In recognition of this and the archiving obligations imposed by statute, the Commission began planning for the archiving of its records in early March 2009, with the secondment of a staff member from the Public Record Office Victoria. As a ‘start-up’ organisation, the Commission had a unique opportunity to build archival provisions into the design and implementation of its systems, policies and practices. Above all, it was vital to ensure that no important records were ‘lost’, particularly in view of the Commission’s commitment to openness and transparency.

Every record created or received by Commission personnel in the course of Commission business is a public record and must be managed in accordance with the requirements of the State’s Public Records Act 1973. Under the Act, the Keeper of Public Records issues standards for the management of public records, including retention and disposal requirements. In broad terms, records identified as permanent will be transferred to the Public Record Office Victoria, and temporary records (notably administrative records related to finance, contracts and personnel) will either be transferred to the Department of Premier and Cabinet (as successor agency) or be destroyed. As provided under the Act, certain permanent records will be closed to public access for designated periods. For example, records of the inquiry into the fire-related deaths will be closed for up 99 years to protect the privacy of those who perished and their surviving family. Once the closures are confirmed, PROV will maintain and manage the closures for the appropriate periods.

The information management systems and services contract with e.law specified that the transfer of Commission records to PROV must be in accordance with the Standard for the Management of Electronic Records (PROS99/007), also known as the Victorian Electronic Records Strategy (VERS), published by PROV.

VERS compliance was built into the document management system by the inclusion of additional PROV-certified software (RecordPoint) that converts the metadata of a document into a form consistent with VERS for long-term preservation. The Commission furthered this by issuing Practice Note 2, which provided that the Commission and parties would produce material in relevant long-term preservation format file types.

Box 3.1 flooding

The importance of business continuity planning was demonstrated twice with the IT systems.

The Commission experienced not one but two floods. The first, in June 2009, was caused by a leaking hot water dispenser on level 14 of 222 Exhibition Street. Fortunately, the flood caused only minor damage, and the systems were rebooted with minimal down time.

The second flood was more serious. On Saturday 21 November 2009 a water pipe burst on level 14, causing major flooding to the building. The majority of the Commission’s core ICT infrastructure and fit-out on the northern side of the building was damaged as a result. The flooding particularly affected the communications room, which was a secure climate-controlled area housing a large volume of sensitive equipment with very restricted access. The flooding also affected the hearing rooms and communications rooms on Level 11.

A major effort and impressive technical ability on the part of DiData rectified the situation. The majority of services were available the next morning, before the week’s hearings began, thus causing few problems other than wet carpet in the hearing rooms and allowing the scheduled hearings to proceed without interruption. Ninety-five per cent of all affected services were restored within 24 hours. The damaged hardware was replaced over several months, the associated outages being planned to minimise interruptions to the Commission’s work.

Had it not been for sound continuity planning, quick action, and access to extensive technical expertise, combined with use of server virtualisation technology and the resilient nature of the Commission’s ICT systems, the flood could have caused severe and potentially crippling disruption.


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From mid-2009 the Commission worked with PROV on retention and transfer requirements. In the first half of 2010 tests were conducted to ensure that Commission systems could produce records compliant with PROV standards. As the Commission winds down all permanent records will be transferred to PROV. It is expected this transfer will be largely digital, in compliance with the Public Records Act. The Commission will be the first organisation to effect a large-scale transfer to PROV in compliance with VERS.

3.2 securIty

Security—of people and documents—was a priority. During the Commission data were collected from the general public, state governments, the Commonwealth Government, private organisations, and people directly affected by the fires. The data ranged from information in the public domain to classified and protected material, including material subject to public interest immunity and legal professional privilege claims, as well as a considerable amount of sensitive personal information. A strong yet flexible security environment was essential.

The Commission’s independent security analyst made an initial risk assessment and helped with the development of the Commission’s security policy. This policy applied to all personnel working at the Commission, including contractors, and covered the following:

building access ■■

hearing room security■■

systems and facilities for managing and storing Commission documents and information ■■

information and communication technologies.■■

BuIldIng access3.2.1

The Commission’s offices on level 12 were fully secured. Access was possible only by using a swipe card, to reach both the floor and then the offices. The hearing rooms on level 11 were on a partially secure floor: public access was permitted in the entry area and the hearing rooms (when they were open), but members of the public were not permitted to enter secure areas without being escorted by security-cleared staff. Swipe card access was used for entry into secure areas. Some areas, such as the data centre room, had highly restricted access limited to essential personnel only.

heaRIng Room secuRIty3.2.2

In Victoria, royal commissions are prescribed as courts under the Court Security Regulations 2004. This meant the Commission had all the powers available to a court under the State’s Court Security Act 1980 with respect to search and seizure powers. This was important for ensuring that the Commission exercised a duty of care to all who participated in the hearings.

Under this authority the CEO of the Commission entered into an agreement for the provision of security services and appointed authorised officers who were empowered to search people and confiscate prohibited items as a condition of entry to the Commission. G4S Custodial Services Pty Ltd was engaged to provide security services for the hearing rooms, including X-ray scanning, front-of-house security, daily opening and closing of hearing rooms and the public access areas during hearings, acting as floor wardens in case of emergency, and regular testing of the emergency response alarms.

The CEO signed an instrument of delegation for each G4S security officer that allowed them to confiscate and receipt prohibited items identified during the scanning process. G4S staff worked closely with the building security provider, ISS Facility Services, which was the first responder to all incidents and was at all times in radio contact with G4S officers.

There were no major security problems or breaches during the hearings.

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InfoRmatIon and RecoRds 3.2.3

The Commission complied with the Information Privacy Principles as set out in the Victorian Information Privacy Act 2000. A privacy statement was available on the Commission’s website, and at all times the Commission was explicit in its reasons for collecting personal information. Private and personal information was gathered solely for the purpose of conducting Commission business.

The Commission decided to adopt the Commonwealth Government Protective Security Manual as the basis for classification and protection of sensitive records. This approach ensured that Commission information was managed in accordance with its sensitivity. The Commission assessed the risks associated with inappropriate access to its information by unauthorised persons, and in mid-2009 implemented a ‘Protected level’ security environment for its information management. The security classifications and definitions used in the Commission were established to protect information, compromise of which could cause damage to the Commission, the parties, the ongoing investigations of Victoria Police, commercial entities or members of the public.

Most documents were classified as commission-in-confidence because they were internal documents related to the Commission’s operations and inquiry, and any compromise of them could potentially damage the Commission’s interests. Some materials did attract the highest protection. As an example, information gathered as part of the inquiries into the fire-related deaths inquiry was given the highest security classification, Protected. The aggregated personal information collected in the course of these inquiries was of such a personal nature that its compromise could potentially cause damage and distress to members of the public, particularly the families and friends of the deceased.

All personnel were briefed on their responsibilities in relation to the different categories of secure materials. Access rights were controlled and regularly reviewed to ensure that they remained appropriate.

As noted, parties’ access to relevant Commission information was managed and controlled through e.trial, with access limited to the terms of each party’s leave to appear.

Even in a secure environment, it is interactions with the outside world that pose the greatest risk. This was demonstrated in May 2010, when the content of documents made available to parties via e.trial, under standard hearing protocols and not otherwise publicly available at the time, was leaked to the media.

InfoRmatIon and communIcatIon technologIes3.2.4

In addition to the Protective Security Manual, the Commission adopted the Defence Signals Directorate’s Information and Communications Technology Security Manual as the basis for its security policy and practice. These two publications represent best practice for physical, personal and technology security in Australia. The Commission designed its systems and processes in accordance with this regime.

The Commission selected information technology equipment from a Defence Signals Directorate security-endorsed product list and, where this was not possible, sought advice on the international common criteria accreditation of the product. Designs were peer validated and tested.

Specific Commission personnel were given remote secure access to the Commission’s internal systems through a secure two-step authentication virtual private network solution using routing and remote secure access technology. RSA was accessible only on specific laptops, and access was restricted and monitored in the firewall connection.

A storage area network was located in the level 12 secure data room. It stored all electronic classified material and had inbuilt back-up capacity in case a section of it failed. This ensured correct access and physical security of the data holdings. Servers, particularly those that were connected to the internet, were protected by devices that ensured access to the Commission’s systems, and data was provided only to authorised users. The website was hosted by an external provider to minimise exposure of the Commission’s network to intrusion. This ‘intrusion protection’ ensured there were no breaches of the firewalls, and the various back-up mechanisms ensured that the Commission was always able to maintain a functioning system.

All these measures combined to ensure that the Commission had a secure network complying with best-practice standards. This allowed it to meet its obligation of ensuring the security of the data developed and collected as part of its work. It also gave those providing information to the Commission confidence that their information was secure.


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Image 3.1 In the county court hearing room

Source: Courtesy of the Herald & Weekly Times.

RISK AND FINANCIAL MANAGEMENT 4


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As discussed in Chapter 1, the Commissioners were committed to conducting their inquiry in accordance with the highest standards of transparency and probity and to ensure that the outcome represented value for money. The Commissioners also repeatedly expressed their intention to complete the inquiry and deliver the final report on time and within budget. Further, they wanted to expressly account for the public monies provided to and spent by them.

The scale and complexity of the inquiry meant that risk and financial management were essential if these aims were to be met. Meeting these goals was also the foundation for the Commission’s independence, integrity and credibility.

4.1 Therisk-managemenTframework

Drawing on the Victorian Government’s risk-management framework, the Commission developed its own risk-management framework and risk register. The Commission’s framework was used to measure the risk inherent in the conduct of the inquiry, the likelihood of those risks materialising and their potential impact, as well as the associated mitigatory actions.

A specific register was developed for the preparation and production of the final report in view of the complexity of the task, the time pressures, and the associated logistical challenges. The registers were regularly reviewed and updated as necessary, and the strategic, operational and reputational risks that had been identified were managed whenever they were within the Commission’s influence or control.

The risk framework was managed by the Business and Human Services team and overseen by the Commission’s Audit Committee.

4.2 relaTedinTeresTsandconflicTofinTeresT

The independence and integrity of the Commission were essential to the influence, acceptance and legacy of its work. The Commission’s related interest and conflict of interest framework—called the CoI Framework—was designed to maintain public confidence, to ensure impartiality in all aspects of the Commission’s work, and to be seen as impartial by the wider community. The CoI Framework was developed in early 2009 with the assistance of probity specialists O’Connor, Marsden and Associates.

The framework encouraged transparency and accountability, promoted individual responsibility, and created a supportive organisational culture. It referred to the following:

the Code of Conduct for Victorian Public Sector Employees■■

the State Services Authority’s ■■ Good Practice Guide on Governance for Victorian Public Entities

the Victorian Ombudsman’s report entitled ■■ Conflict of Interest in the Public Sector

the OECD’s ■■ Guidelines for Managing Conflict of Interest in the Public Service: report on implementation.

The framework applied to all personnel engaged by or for the Commission as an employee, contractor or consultant. It helped individuals working with the Commission understand, identify and disclose any related interest or conflict of interest pertaining to their involvement, and it provided a clear and consistent basis for any associated risks to be managed and mitigated.

The framework recognised that a conflict of interest can be actual, potential or perceived and applied to an individual’s pecuniary and non-pecuniary interests. It was also recognised that a conflict can arise as a result of someone’s personal associations (or related interests)—including a spouse or de facto partner, an immediate family member, a close friend or an employer.

The existence of an unmitigated conflict of interest could attract scrutiny or criticism, so all individuals working for or providing services to the Commission were required to disclose any involvement, on their part or that of their associates, in the bushfire-related events of 7 February 2009 and following, or any involvement with, or interest in, an organisation or group that was, or could be, affected by the Commission’s work. In practice, this meant that all who were working with the Commission were required to do three things:

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Risk and financial management

disclose any conflict of interest or related interest■■

sign a deed of confidentiality■■

undergo a national police records check. ■■

The HR adviser and the CEO assessed each declaration and records check. Where something was identified as giving rise to an actual, potential or perceived conflict of interest, the most suitable strategy for dealing with this was determined and discussed with the individual concerned. All risks were reviewed periodically, and individuals were called on to advise the Commission of any change in their personal circumstances.

It is important to note that the existence of a related interest was not grounds for automatic exclusion from the Commission. The magnitude and impact of the 2009 fires were such that, as in the broader community, many Commission personnel knew directly or through associates someone affected. Similarly, many knew or knew of people involved in the response, relief and recovery efforts or in other activities, including as a party to the Commission.

Devising the appropriate mitigation and management strategy depended on the nature of the related interest. In most cases this simply involved the interest and the mitigation strategy being placed in the Conflict of Interest Register. In a small number of instances stronger action was required, including the following:

A candidate in a recruitment process was excluded because an actual conflict of interest was identified.■■

It was assessed as inappropriate for an individual who knew someone who had died in the fires to work on ■■

the inquiries into the fire-related deaths.

In response to changing circumstances, the potential for a perceived conflict of interest arose and an individual ■■

ceased work at the Commission.

On the basis of the potential for a perceived conflict of interest an individual was excluded from any participation ■■

in a specific topic of inquiry and the associated records.

Counsel assisting was not subject to the CoI Framework: the Victorian Government Solicitor’s Office would have discussed any potential conflicts of interest that might have disqualified counsel before their engagement with the Commission.

A particular conflict of interest did arise in relation to e.law and required specific action. e.law advised the Commission that several parties with leave to appear had approached it in connection with the provision of document management services to support the parties’ engagement with and appearance before the Commission.

With the assistance of a specialist probity consultant, the Commission and e.law agreed on a mitigation strategy that required disclosure of requests by e.law and approval in writing from the Commission to provide services to third parties with an interest in the proceedings. e.law was also required to implement ‘separations’ within its business in order to protect the interests of the Commission and those of the other parties. This involved e.law staff who were working at the Commission not working at a second site and all personnel being trained in protocols relating to business practice separation.

Ultimately, there was only one third party relationship that was subject to this regime. The Victorian Government Solicitor’s Office retained e.law to assist with processing material to be provided to and received from the Commission. The Commission approved the engagement but had no role in or knowledge of the contractual arrangements between e.law and the VGSO.

4.3 financialinformaTion

Royal commissions have major legal, information management, research and administrative requirements and as a result are costly. One of the difficulties for government in establishing a commission is estimating the funds that will be needed because it is not until the investigation in under way that the true requirement is ultimately revealed.


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The Victorian Government allocated $40 million to cover the set-up and operations of the Commission. As a matter of interest, this compares with the £920 (or almost $67,000 in current dollars) provided to the 1939 Stretton Royal Commission, which concluded a four-month inquiry and produced a 36-page report with simple technology. There is no requirement for the Commission to publish its accounts. The Commission felt, however, that it was necessary and important to be open about the expenditure of the public monies made available to it. The Commission notes the observations of the Australian Law Reform Commission in its report Making Inquiries: a new statutory framework on the cost of inquiries and supports its recommendation that summary expenditure of inquiries ought be published.1

Budget and financial management4.3.1

On 16 February 2009 an Order in Council published in the government Gazette under r. 8 of Victoria’s Financial Management Regulations 2004 authorised the Commission to incur expenses and obligations up to $40 million.

These monies were made available to the Commission in two instalments: the first instalment, of $15 million, was granted for the period to 30 June 2009; the second instalment, of $25 million, was granted for the period to 30 June 2010. (In practice, a small amount of this will carry into 2010–11, reflecting the Commission’s reporting date and wind-up.) The first instalment was made available by way of a temporary advance issued by the Minister for Finance, on 3 March 2009, pursuant to s. 37 of the State’s Financial Management Act 1994. The allocated funding was to cover the total cost of the Commission, incorporating the following:

initial set-up costs, construction of hearing rooms and purchase of assets■■

payments to employees and contractors■■

preparation of the interim and final reports■■

decommissioning costs associated with the closure of the Commission.■■

Pursuant to the powers conferred by the Commission’s letters patent and the Order in Council of 16 February 2009, and so that there could be no doubt, the Commission Chairperson issued written instruments of delegation conferring authority to incur expenditure on the behalf of the Commission and within defined limits, as follows:

Commissioners—$40,000,000■■

Chief Executive Officer—$500,000■■

Business Services Manager—$20,000.■■

An external accountant was contracted to establish a financial reporting framework and oversee and advise on the Commission’s accounting and financial governance. Internal controls, systems and procedures, reconciliation and reporting, and governance processes allowed careful tracking and analysis of all monetary outlays by the Commission. Controls and processes also ensured consistency and efficiency at all times. Budgets and forecasts were continually updated to take into account any new initiatives adopted by the Commission. The CEO and the Business Services Manager reviewed the budget accounts monthly, and any concerns or anomalies identified were dealt with immediately.

The broad intention of the Commission’s internal financial reports was to track actual expenditure and ensure that it remained within budget. Cost centres were developed to allow the preparation of more relevant and meaningful financial reporting. The centres represented the Commission’s major projects or activities—for example, hearings, community consultations and regional hearings. Each cost centre included all expenses identified as relevant to the particular initiative, excluding the costs of staff directly employed by the Commission. All staff costs are included as part of general administration.

Although many of the Commission’s financial processes were managed independently, the Commission still drew on the Department of Treasury and Finance and the Department of Premier and Cabinet for a limited number of support services. It did not have its own bank account: all funding was held by DPC on behalf of the Commission and disbursed in accordance with the directions of the Commission’s internal accounting team. All original documentation relating to disbursement of funds was kept by the Commission. DTF provided weekly and monthly reports on monies disbursed for the Commission. These reports were reconciled back to the internal reports of the Commission.

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Risk and financial management

DPC’s outsourced human resources service provider, Accenture, provided payroll support for the Commission, administering all on-staff payments on a fee-for-service basis. Each payroll period the Commission’s Human Resources Adviser and the accounting team carried out reconciliations of the payroll and leave entitlement reports provided by Accenture.

4.4 summaryofexpendiTure

Table 4.1 shows the Commission’s expenditure.

table 4.1 commission expenditure, 16 february 2009 to 31 august 2010a,b

Expense Total costsb ($)

Legal fees (counsel assisting) 2,899,978

Legal fees (solicitors)c 9,008,518

Commissioners 1,206,409

Staff costs 3,133,582

Hearing related costsd 958,643

Information and records management 5,793,837

IT and telecommunications 3,476,857

Other professional servicese 1,085,865

Report productionf 1,896,650

Travel and accommodation 15,755

Occupancyg 4,403,919

General administration 747,420

Depreciation and provisions 2,930,972

total expenditure 37,558,405

Notes:

a. This summary has been prepared in accordance with applicable Australian Accounting Standards (including the Australian Accounting Interpretations).

b. The 2009 Victorian Bushfires Royal Commission discharged its terms of reference with delivery of its final report on 31 July 2010. The expenditure shown reflects actual costs incurred by the Commission to 30 June 2010 as well as an estimate of costs of the final month of operation in July 2010 and expected wind-down and decommissioning costs to 31 August 2010, to provide an accurate reflection of all costs associated with the Commission.

c. Solicitors fees only, disbursements for example associated with expert witnesses, are distributed across relevant cost centres.

d. Including costs of community consultations and costs associated with expert witnesses engaged.

e. Including costs of research, probity, procurement, accounting and other contracted professional services.

f. Predominantly costs of layout, design and editing, with a small proportion of printing costs. The majority of printing and distribution costs for the Commission’s reports were incurred by the Department of Premier and Cabinet.

g. Includes building lease and initial set-up costs.


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4.5 audiT

An Audit Committee—consisting of the Commissioners, the CEO, the Business Services Manager and the external accountant—was formed in the early stages of the Commission. Its role was to review the budget against the Commission’s actual financial position and to discuss strategies to mitigate any actual or perceived risks. Meetings were held quarterly or as required.

The Commissioners were furnished with reports that highlighted both consolidated financial positions and cost centres reflecting the areas of work in the Commission. This allowed expenditure to be tracked against estimates and budget implications of proposed initiatives to be considered. It also allowed for a continued focus on emerging cost pressures, enabling the development of mitigation strategies to effectively manage costs.

As noted, the Department of Premier and Cabinet held funds on behalf of the Commission. Although the department had no influence over the Commission’s expenditure of the monies, aggregate financial information related to the Commission was included as an administered item in the notes to the financial statements in the department’s annual report for each of the three financial years in which the Commission operated.

As a result, the Victorian Auditor-General’s Office audited the Commission’s internal financial controls as part of its audit of the Department of Premier and Cabinet’s 2008–09 and 2009–10 financial statements. The Commission received no formal reports about the audits, but a positive verbal report was conveyed on each occasion. The final figures of the Commission will be included in the department’s 2010–11 financial statements.

1 Australian Law Reform Commission 200, Report no. 111, Making Inquiries: a new statutory framework ALRC, Sydney—see Part C, ‘Funding and costs of inquiries’, particularly pp. 236–41.

REFLECTIONS 5


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The 2009 Victorian Bushfires Royal Commission operated in the absence of dedicated legislation. During the term of its operation the Australian Law Reform Commission published a report, Making Inquiries: a new statutory framework, that points to the need for the expertise in conducting inquiries to be documented. This volume is essentially a means of accounting for the administration of this 2009 Victorian Bushfires Royal Commission. It also affords the opportunity to bring to light the perspectives of some of the individuals who played key roles in the conduct of the Commission, in keeping with the proposal of the ALRC. With this in mind, the Commissioners invited counsel assisting, solicitors instructing and the CEO to each write a reflection on their individual role and contribution to the life of the Commission. The Commissioners begin the chapter with a reflection of their own.

5.1 Thecommissioners

We three Commissioners were virtual strangers when we met at 2.30 pm on Monday 16 February 2009. We came from varied backgrounds and professional experience but quickly realised that we brought a common purpose to this Royal Commission. From day one we agreed that we wanted to engage with the community to the maximum extent possible: we believed that all Victorians—but particularly those marked by Black Saturday—should have the fullest possible access to our proceedings. We were of one mind that we would adopt a rigorous approach with the goal of producing a substantial report on time and within budget. We set to work that day in temporary accommodation with borrowed staff.

The circumstances in which this Commission was set up shaped its nature and scope. A catastrophe had occurred and 173 people had died. The grief and loss were palpable. The Government framed exceptionally wide terms of reference and, despite this breadth, we were given a relatively brief time frame. We expected to be subject to a high level of public scrutiny and that expectation was realised. We chose to work as equals, as a threesome. This worked extremely well. We accepted that we would be operating within a substantially legalistic model, with its benefits and limitations. The advantages include the use of publicly tested evidence, high levels of public confidence in the integrity of the process, and a perception of distance from political interference. The disadvantages relate to the potential for parties to adopt an adversarial (rather than inquisitorial) attitude, heavy financial costs, and a narrower use of material than would be accepted in an administrative inquiry.

The absence of a royal commission Act distinguishes Victoria from most other Australian jurisdictions. Without specific legislation we adopted a modified legal mode but inserted innovative approaches, such as the community consultations, live streaming of our hearings, the use of expert panels, and a novel approach to the inquiries into the fire-related deaths. We believe, however, that individual royal commissions should not be left to sequentially grapple with such matters and that more enduring arrangements should be determined. We refer to the recommendations in the report of the 2001 Royal Commission into the Victorian Ambulance Service by (now) Justice Lex Lasry that call for legislation on this matter. His recommendations were not adopted; we think they should be. The Victorian Law Reform Commission or a comparable body would be a suitable entity to offer advice on this matter, with a substantial head start given by the 2009 report of the Australian Law Reform Commission Making Inquiries: a new statutory framework. The ALRC considered the views and submissions of many people and organisations, engaged a highly respected team of consultants to assist with its work, and framed valuable recommendations.

For its own part, this Commission sees merit in a review of this nature in the Victorian context and makes the following recommendation.

recommenDATion67

The State consider the development of legislation for the conduct of inquiries in Victoria—in particular, the conduct of royal commissions.

5 reflecTions

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Reflections

As with other inquiries, a collection of strong-minded intelligent people was assembled. We shared the common aim of producing an influential report after wide consultation on a large number of topics, involving the widest possible range of witnesses. Time constraints dominated the setting of priorities. Everyone engaged expected that the assignment would probably prove exhausting, and that expectation was realised.

Early in its work the Commission faced hurdles relating to representation—for example, the decision of the State that all departments, agencies and employees were to be represented by the Victorian Government Solicitor. Representation of all government entities in this manner had advantages and disadvantages. The positives included a single assembly point for massive volumes of material (thereby minimising duplication and overload), a common point for the Commission’s solicitors in their dealings with government, and reduced costs associated with a government entity working for all government agencies. The disadvantages included the adoption of a single government view on matters such as organisational structure (where there might have been institutional differences of view on desired directions for change) and the challenge of the government’s lawyers representing the interests of all government employees and volunteers.

We had the benefit of an extremely capable chief executive officer, as well as high-calibre counsel assisting and instructing solicitors. Ms Jane Brockington, the CEO, was appointed early from a competitive field and promptly set to work to establish the Royal Commission to operate transparently, efficiently and with high standards of governance and probity. Ms Brockington oversaw a talented team of dedicated staff throughout the term of the Commission, and these people served us capably and diligently.

Our firm of solicitors was Corrs Chambers Westgarth. Partner Mr Val Gostencnik, assisted by partner Ms Janet Whiting, provided unstinting support to the Commission. Corrs was a point of contact for the Commission with external parties, supported counsel assisting, offered specific legal advice, and assisted with the drafting of the final report. The Commission is indebted to the Corrs team members for their outstanding professional services.

Mr Jack Rush QC assembled a group of five other counsel assisting who were all exceptional advocates. The ALRC report notes some of the roles of counsel assisting. Some go to matters of evidence—identifying witnesses, obtaining statements, calling witnesses, examining witnesses. Others are broader—advising Commissioners, making opening and closing statements, making submissions. The ALRC report also suggests the possibility of defining those roles more clearly. We opted not to be prescriptive but to allow substantial independence. Given the complementarity of our roles, this generally worked well. To adopt a naval analogy, counsel assisting were the navigators and the Commissioners captained the enterprise.

The ALRC report refers to the benefits of having more than one commissioner, diversifying the skills, knowledge and experience and enabling a sharing of the workload. There is the potential problem of dissent among commissioners, but this possibility was minimised by a maximal acceptance of equality, particularly when endeavouring to moderate an overly legal approach. We agreed early in the life of the Commission that we would aim for consensual decision making and reporting. Our reports, which are unanimous, are testament to the success of this approach.

We were well aware of certain risks. In particular, because substantial private and personal interests were bound up in a number of the matters under consideration, we were at pains to manage proceedings in a way that limited the risk that an application for judicial review might be made. That this and other potential concerns were not realised is a tribute to the whole team. At one point, as to an evidentiary issue, we were faced with the need for an urgent amendment to State law. Fortunately, that was effected expeditiously. There were other risks linked to our making decisions ‘on the run’ as to our processes, without governing legislation. To reiterate, such risks could be reduced if a broad framework to aid royal commissions were developed. We began from scratch without the benefit of dedicated legislation to guide our hand. The ALRC report thoroughly investigated modes of inquiry, and we prepared this administrative volume with an eye to further illuminating the nature and challenges associated with a royal commission. We invited Mr Rush, leader of the team of counsel assisting, Mr Gostencnik, partner from Corrs, and Ms Brockington to make comment from their various perspectives.


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On a personal note, we three Commissioners are greatly indebted to all who worked within and beyond the Royal Commission to ensure its inquiry was robustly conducted. At the risk of singling out individuals, we are particularly indebted to Ms Colleen Carney, our executive assistant, who supported all three Commissioners. Rarely have we encountered a person of this stamina, flexibility and dedication. Ms Annie Tinney, Strategic Adviser and Manager of the Commission’s Executive Services, provided ongoing professional counsel on which the three Commissioners came to rely. We salute Colleen and Annie and thank them warmly.

Bernard Teague AO, Ronald McLeod AM and Susan Pascoe AM

5.2 counselAssisTing

Counsel assisting were Mr John ‘Jack’ Rush QC, Ms Rachel Doyle SC (appointed SC December 2009), Ms Melinda Richards, Mr Peter Rozen, Dr Stephen Donaghue and Ms Lisa Nichols.

The role of counsel assisting is not defined. By convention their main role is to identify, obtain and then lead in evidence all relevant material for the Commission so as to enable a full inquiry into all matters as necessitated by the terms of reference. This important task was achieved by identifying relevant witnesses and experts and the marshalling of documents that were generally obtained by summons requiring compulsory production.

In the hearings process counsel assisting played a central role. They made an opening address to the Commission on the first day of hearings, generally identifying the matters for inquiry and the approach that would be taken to the production of evidence during the inquiry. They called all witnesses who appeared in the Commission. Witnesses usually provided a detailed written statement prepared by lawyers representing them or, alternatively, with assistance in the preparation of the statement, by lawyers appointed to the Commission.

At the conclusion of individual topics covered in the evidence, counsel assisting prepared detailed written submissions containing the findings and recommendations they considered warranted on the evidence presented to the Commission. The submissions of counsel assisting were served on relevant parties, who were then given the opportunity of responding in writing. Opportunity was then provided for counsel assisting and the legal representatives of represented parties to make oral submissions in relation to each topic; for counsel assisting these oral submissions in relation to each topic served as a closing address.

The independence of counsel assisTing5.2.1

The appointment of senior counsel assisting the Commission was made by government through the Victorian Government Solicitor, after discussion with the Chairperson of the Commission. Thereafter barristers possessing relevant investigative and legal skills were identified in consultation with the Chairperson, and appointments were made through the Victorian Government Solicitor.

On appointment, counsel assisting functioned with substantial independence, assisted by solicitors appointed to the Commission, Corrs Chambers Westgarth. The particular circumstances leading to the establishment of the Commission underscored the importance of that independence.

The significance of the losses of 7 February led counsel assisting to adopt a role in the hearings that represented, as far as possible, the public interest and particularly the interest of families, friends and communities affected by the fires. This role was important because of the practical impossibility of individual representation at the Commission for such individuals and groups. Effective representation of the public interest was assisted by counsel assisting’s independent role.

Counsel assisting and the solicitors to the Commission maintained consistent contact with people in bushfire-affected areas over the course of the Commission’s hearings. This contact included the calling, each day of hearings, of evidence of people affected by the fires, consideration of the many submissions members of the public presented to the Commission, and close consideration of the subjects raised at community consultations held by the Commissioners. Whilst this role required counsel assisting to exercise a general discretion as to the manner of approach in relation to the presentation of such evidence, a key objective of counsel assisting in the hearings was to ensure that community concerns so identified were raised and addressed by the evidence.

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Reflections

engagemenT wiTh The commissioners5.2.2

The Commissioners and counsel assisting held regular meetings throughout the hearings. Robust discussion concerning the many matters raised and to be raised in the evidence was encouraged at these meetings. As a consequence, a general appreciation of varying topics and opinions was developed. The discussions enabled counsel assisting, where appropriate, to adjust the selection of witnesses and the direction of examination both to meet the needs of the Commissioners and, as far as possible, to cover all relevant matters. A number of constructive initiatives were developed as a consequence of these discussions—such as the arrangement of expert panels ‘hot-tubbing’ the complex topics of planning and fuel management.

Although counsel assisting met with and discussed issues with the Commissioners and worked within the Commission premises using, as appropriate, the administrative structure established by the Commission, they nevertheless maintained an independence as to the calling of evidence and the making of submissions.

When necessary counsel assisting provided advice to the Commissioners on questions of law and practice. The advice provided was wide ranging over the course of the Commission and included advice on matters concerning procedural fairness in the conduct of Commission hearings, the application of relevant provisions of the Evidence Act 1958 and general matters bearing on the requirement that all personnel working for the Commission in their actions and conduct maintain and be seen to maintain independence and objectivity.

In some inquiries and commissions counsel assisting are involved in helping with the writing of the Commissioners’ final report. This course was not followed. The engagement of counsel assisting concluded, in effect, with the presentation of final submissions.

The independence of counsel assisting has advantages and potential disadvantages. Independence brings objectivity to the Commission investigations and avoids suggestions of government pressure or influence being brought to bear.

The Royal Commission was of its nature ‘inquisitorial’. The Commissioners were required to inquire into and report on specified matters. They possessed extensive powers to compel the provision of evidence and the production of documents. The exercise of these powers demands a thorough recognition and application of the rules of procedural fairness. Counsel assisting brought such experience to the legal requirements of an evidence-based inquiry—important where the role and function of individuals and organisations are under close scrutiny.

Further, controversial issues and contested matters could be raised with witnesses through counsel assisting in an independent fashion, protecting the Commissioners from having to become involved in areas of controversy or from being seen to be indicating a view or opinion by their intervention, before all the evidence has been gathered.

The independent role of counsel assisting carries with it a potential risk that counsel assisting will not consult satisfactorily with commissioners or that the working relationship between the commissioners and counsel assisting might break down. It was understood that an efficient working relationship was vital to the success of the Commission, not only to ensure, as far as possible, that the Commissioners’ expectations as to the evidence produced were met but also to facilitate the necessary planning and meeting of time lines for the production of the final report; without that working relationship the time line set by the terms of reference for the completion of this final report could not have been met.

The Commission’s processes were the subject of intense media scrutiny and reporting. Public access to the proceedings was an important objective for the Commissioners. This was achieved by various means, including direct internet broadcasting. Consequently, there was close public scrutiny of the approach adopted by counsel assisting to controversial issues in the hearing room and also close attention to the written and oral submissions of counsel assisting.

On occasions the independent role of counsel assisting and the status of the submissions of counsel assisting were not clearly understood or were not explained by some, including media, as being solely the views of counsel assisting. This produced in some sections of the community an element of confusion, there appearing to be a misconception that counsel assisting were acting at the direction of the Commissioners and that the submissions


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and opinions put forward by counsel assisting in some way represented the views of the Commissioners, whereas the reality was that these were merely the submissions and opinions put forward by counsel assisting. This misconception appeared to be maintained despite frequent enunciation of the true role of counsel assisting in the course of the public hearings.

The role of counsel assisting and the obligation that falls on them to provide independent advice as to the conduct and administration of a commission also carry a risk of misunderstanding and strain on working relationships with commission staff. This potential risk is exacerbated by the different backgrounds and training of those involved and the differing perceptions as to the roles and responsibilities of each. These matters require discussion and resolution at an early stage of commission proceedings, to ensure efficient delineation of responsibilities and appropriate working relationships.

State legislation setting out the role, powers, conduct and procedures of a royal commission is highly desirable so as to ensure such a commission is possessed of all necessary coercive powers to undertake the investigation and to report, as called for by terms of reference. Such legislation will provide certainty as to procedure. Nevertheless, the legislation should not be overly prescriptive in relation to procedure because it is important that commissioners and counsel assisting are able to adapt and innovate (within the bounds of procedural fairness) where necessary in relation to both the gathering and the presentation of evidence.

Jack Rush QC

5.3 soliciTorsinsTrucTing

The fires that burned throughout the state on 7 February 2009 and devastated many Victorian communities have variously been described as extreme, feral, devastating, savage and unprecedented and their consequences as catastrophic and tragic. But no reported words or second-hand accounts of the events of 7 February come close to describing the sense of destruction, dislocation and pain caused by those events that one gets from observing the faces of those who stayed to defend their properties and survived the fires, of those who lost family, friends and neighbours, of those who lost property and cherished personal possessions—and from listening to the words they use to describe first hand their experience or to observe their relief, their pain and their fury.

As solicitors to the Royal Commission, my legal team and I were both privileged and profoundly affected by these observations and by the first-hand accounts that we heard as we prepared material that would form some of the evidence before the Commission. These personal stories served as daily reminders of why we were all here—because 173 people had died, communities had been destroyed, and some lives had been changed forever.

The knowledge of the horrendous human cost of the fires—perhaps the nation’s greatest peace-time disaster—brought, first, feelings of shock and disbelief and, next, tremendous efforts at providing relief by government and social welfare agencies, communities and individuals. Inevitably, though, questions were asked: Why did this happen? What can we learn?

Tragic events of the scale of those of 7 February 2009 demand inquiry and investigation. As the Premier acknowledged, the scale of the tragedy demanded that an independent body be established to determine what had happened, so that lessons might be learned from the events. Lessons must be learned in order that the risk of lives being lost in bushfires in the future is reduced. Royal commissions can be established for multiple purposes and for multiple reasons or motives. Some of the purposes and motivations for establishing commissions of inquiry were discussed recently by the Australian Law Reform Commission, but it is not necessary for me to enter into that debate.1

Royal commissions conduct their work in an inquisitorial manner that is quite unlike the adversarial style encountered in a proceeding in a court. This approach seems therefore well suited to the task envisaged by the Premier when he announced the establishment of this Commission. Royal commissions are perceived to have broad investigative and coercive powers. They are not bound by strict rules of evidence that apply to proceedings before a court.

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Reflections

Again, this seems well suited to uncovering facts, materials and other information, which in a court of law might not be admissible.

Despite their broad powers, however, royal commissions do have limitations. They are established by the executive of government to report and make recommendations. They cannot implement their own recommendations. Their recommendations are not binding, do not have the force of law and do not compel action. And royal commissions do not have the functions of a court (to interpret and adjudicate) or of the parliament (to make laws). Critics of royal commissions often point to the excessive costs incurred in the conduct of, and the lack of results achieved by, royal commissions. Such criticisms are misdirected and misunderstand the nature and role of royal commissions. First, criticisms about the lack of effectiveness of a royal commission are often directed at the failure of recommendations to be implemented. But this is not a function of a royal commission. Recommendations are implemented, in whole, in part or not at all, by those to whom the recommendations are directed. Criticisms about implementation should properly be directed elsewhere. Second, royal commissions often bring to light matters that should properly be publicly debated and be used in policy development and legislative amendment.

I do not question the ability of a royal commission to effectively conduct an inquiry of the kind that this Commission undertook. Throughout the course of this Commission’s work, however, I paused on more than one occasion to consider the effectiveness of the framework under which commissions of inquiry in Victoria must operate.

In Victoria, a commission of inquiry may be established by the Governor in Council under s. 88B of the State’s Constitution Act 1975. The Constitution Act does not confer on a commission of inquiry that is established under that Act any particular power that would facilitate inquiry. It has long been accepted that executive government cannot confer coercive powers on commissions it establishes.2

The terms of reference contained in the letters patent issued to establish this Royal Commission set out the scope and subject matter of the inquiry but do not, despite their terms, confer any particular coercive powers on the Commission. Therefore, despite the apparent broad coercive powers to ‘call before [the Commission] such person or persons as [the Commission] shall judge likely to afford [the Commission] any information upon the subject of this our Commission’ said to be granted by the letters patent, this provides no basis for the Commission to compel a person to appear before it to answer questions.3 A royal commission will have those powers to require the production of documents or the appearance of a witness only as legislation confers on it. During its term, this Commission relied on certain powers conferred on it by the Evidence Act 1958 and, since 1 January 2010, the Evidence (Miscellaneous Provisions) Act 1958.

Unlike other state jurisdictions or the Commonwealth, Victoria does not have specific legislation that deals with the role, conduct and powers of a commission of inquiry. Instead, commissions of inquiry such as this Commission rely on a mix of outdated and poorly drafted provisions in the Evidence Act (and now the Evidence (Miscellaneous Provisions) Act), tempered by the scope and breadth of terms of reference contained in letters patent. Important matters of rights of appearance, rights of cross-examination, claims of particular immunities and the roles of counsel assisting and the commissioners are left uncertain or to convention or to practices adopted by previous royal commissions. Uncertainty also pertains to the administration of the commission. For a body charged with important work, with all the attendant expense, such a piecemeal, uncertain and incomplete framework is unsatisfactory.

During the term of this Commission this patchwork of uncertainty led to some unnecessary conflict, delay and inefficiency in the work the Commission had been asked to do. In the report of the Royal Commission into the Metropolitan Ambulance Service, Commissioner Mr Lex Lasry QC (as he then was) argued that during the course of his commission it became clear that the legislative framework for royal commissions in Victoria was inadequate. He said the framework was not comprehensive ‘for the efficient conduct of Commissions of Inquiry’ and that the deficiencies ‘may have the effect of increasing the time and cost of Royal Commissions, as every Commissioner must make his or her own rulings on a range of procedural and administrative aspects that could otherwise be embodied in legislation’.4 Further, the framework gave rise ‘to a degree of uncertainty as to how Commissions should operate from the point of view of those appearing before them’5—to which I would add those working within them or assisting them. These observations remain valid today, and I wholeheartedly agree with Commissioner Lasry’s observation that Victoria would be well served by the passage of specific legislation dealing with commissions of inquiry.6


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Corrs Chambers Westgarth was appointed solicitors to the Royal Commission and solicitors instructing counsel assisting. I am a partner at Corrs and, with the assistance of Ms Janet Whiting, led the legal team at the Commission. We were honoured to be appointed to work on this very important inquiry and we were fortunate to work with such a committed group of Commissioners, counsel assisting and Commission staff. In broad terms, our role was to provide legal advice and legal services to the Commission. We also acted as instructing solicitors to counsel assisting. We coordinated the gathering of evidence, by summons or other means and by obtaining and preparing witness statements. We oversaw document management, and we arranged for the calling and attendance of witnesses before the Commission. We helped counsel assisting with analysing evidence, preparing witnesses, and preparing submissions and proposed recommendations to the Commission. We conducted legal reviews of the interim and final reports, as well as contributing to some of the drafting. We were the primary point of contact for parties with leave to appear before the Royal Commission and generally managed the legally related business of the Commission during hearing blocks.

It is opportune that I acknowledge the tremendous and painstaking work done by an exceptionally talented, enthusiastic, committed and hard-working team of lawyers, paralegals and legal assistants that were gathered to work with Janet and me throughout the period of the Commission. It was my privilege to lead this team. They did difficult and challenging work, particularly in preparing lay witness accounts of experiences of 7 February and in reviewing traumatic and confronting material prepared for the hearings into the fire-related deaths. Their work was outstanding. I particularly acknowledge and thank Ms Jennifer DeJong, special counsel, and Ms Ruth Hart, senior associate, for their insight, support and helpful counsel to me and their guidance of our legal team.

Working as solicitors to the Royal Commission was a unique and rewarding experience. As with any busy, challenging and highly pressured enterprise, relationships between people are sometimes tested, patience sometimes is stretched, tempers sometimes become frayed, and strongly held opinions can be forcefully expressed. But for the most part all involved in the Commission’s work—the lawyers, counsel assisting, the researchers, management and support personnel, the e.law team, and the Commissioners—remained good-humoured and focused on the task at hand and on the reasons that brought us all together.

The subject matter debated and tested in the Commission during hearings was at times controversial, at times deeply moving, at times distressing and at times remarkable and a testament to human resilience. The scope of the inquiry was ambitious and expansive and the time frame tight. But throughout this period the cooperation of the parties with leave and their legal representatives in the conduct of the Commission’s work was unyielding, important and greatly appreciated. The mountainous volumes of documents and witness statements prepared for tender before the Commission could not have been dealt with were it not for the hard work and effort of those parties and their lawyers. I thank all parties and their lawyers for their assistance and cooperation with me and my team, and I particularly acknowledge the work of the Victorian Government Solicitor and his team in that process.

Thousands of homes, buildings and community amenities, as well as public infrastructure, were damaged or destroyed by the fires: these can be repaired, rebuilt or replaced. One hundred and seventy-three people died in the fires: lost lives cannot be brought back, and the pain and anguish experienced by the families, friends and neighbours of those who died will take years to ease. It is to be hoped that the recommendations this Commission makes will have a lasting positive effect, that it will improve the safety of people living in bushfire-prone areas in Victoria. Bushfires in the most bushfire prone region of our planet are inevitable, but loss of life during them is not.

Val Gostencnik

5.4 chiefexecuTiveofficer

It began with a phone call on a Sunday afternoon: Would I be interested? Was I available? ‘Yes’ was the only possible response.

The following morning it began in earnest. In hindsight, it is probably just as well that on that morning I did not know (and, indeed, could not have known) what the next 18 months, and more immediately the next several weeks, would hold and require of me.

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Reflections

A royal commission is an unusual organisation. It is an administrative inquiry created by executive government but, by convention, it relies on a legal mode of gathering and testing information. In Victoria there is no overarching legislation and there are no guidelines to direct such an organisation’s conduct and operation or the roles of those within it.

A royal commission begins with a piece of paper, a Commissioner (or three), no people, no resources and no infrastructure. It must quickly form, bringing together people from different disciplines with diverse experiences. This Commission had additional challenges and high expectations of itself, born out of the urgency of its task, the magnitude of the impact of Black Saturday on the Victorian community, and the breadth of the terms of reference.

This all contributed to an exciting, rewarding and demanding role as CEO.

esTablishing The operaTion5.4.1

The CEO arranges the operational capacity of the commission and then is responsible for its organisational needs, its people, policy, infrastructure and finance. In undertaking this, I was guided by the principles the Commissioners enunciated from the outset—openness and accessibility, transparency and probity, efficiency and value for money, innovation and the highest standards of practice.

The immediate challenge was to quickly establish a fully functioning organisation while ensuring that the principles of probity and accountability were never compromised. We needed to find the right people, the right premises (including building hearing rooms), create seamless and efficient document management, human resource, financial, contract and archival systems, and we needed the technology to support an inquiry of this scale. Simultaneously, the work program and priorities for the next 18 months needed to be planned and resourced, and there was a pressing need and expectation to get the substantive work under way quickly. It was also necessary to think about the Commission’s legacy and to ensure that its records—not just its reports—would be available in the future for all Victorians.

The Commission’s administration was established quickly and efficiently. The practical assistance provided by various government departments helped in this; they also allowed a number of their best people to work with the Commission.

I am indebted to the small team who threw themselves into the fray in those early days. They worked under extreme pressure and demonstrated great agility and innovation in developing websites, attending to public submissions processes, instituting a sensitive approach to community consultation, and so on. At the same time we established an internal research agenda; dealt with an avalanche of inquiries from the public, media and potential parties; sourced services and infrastructure; and worked through the logistics of an intensive hearings program. Some people stayed for a short time, others for the duration. All brought with them a strong understanding of the highest standards of public sector probity and accountability.

During this phase, the experience of two previous royal commissions provided guidance. First, the final report of the Royal Commission into the Metropolitan Ambulance Service reinforced the importance of ensuring exemplary probity in all activity to minimise the risk of legal challenge, which could cause delay and potentially diminish the credibility and integrity of a commission. Second, the final report of the Royal Commission into the Building and Construction Industry provided insight as to the records management and information systems needed to support a commission’s work. I am also grateful to two former commission secretaries (or CEOs) who generously shared their experience and insights.

problem solving5.4.2

Each commission is necessarily unique, shaped by its terms of reference, the commissioner(s) appointed, the nature of its inquiry and the time available. Identifying and responding to the challenges that emerge is a central and constant feature of the CEO’s role and the office of the commission more broadly. Quick, practical and robust problem solving was necessary throughout the term of this Commission. For example:

Concerns about the status and value of information collected through the community consultations led to each ■■

session being recorded.


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Challenges in the preparation of the interim report led to improved processes for the final report and tighter ■■

project management.

Concerns about the emotional impact on people attending the hearings into the fire-related deaths led to ■■

the appointment of a specific staff member to manage the relationship with the families and friends and to the provision of support by counselling services.

Flooding of the communications room led to a quick recovery that minimised time lost to work and the hearings.■■

budgeT and financial managemenT5.4.3

There is no template for a royal commission and nor is there a reliable cost model. Royal commissions are complex, expensive undertakings and not uncommonly seek extensions of time and budget. The Commissioners made clear from the outset their expectation that they would conduct their inquiry fully and deliver on time and within the $40 million budget provided—quite a challenge in itself.

Much of the infrastructure, plus the people, the systems and the accommodation, had to be arranged in the early days, when the pressure to ‘get going’ is most acute. It is also when the least is known about what will ultimately be required.

It was necessary to contract specialist services in order to meet the Commission’s resourcing needs. Procurement had to be expeditious while complying with public sector accountability standards. Three organisations filled the major contracts: Corrs Chambers Westgarth, the Commission’s solicitors; e.law, our information and records management provider; and Dimension Data our information technology and service support provider. All three organisations worked tirelessly and served the Commission extremely well.

The purpose of a commission is to inquire. Necessarily, much of what is required is only revealed as the inquiry proceeds. The constant internal pressure is to summons more material, to call another witness, to engage another expert, or to commission further research to ensure completeness. This pressure affects the costs of the investigation, information management and other support systems. In this environment it is easy to understand how extensions of time and budget are so often sought.

Meeting the Commissioners’ objective of ‘on time and on budget’ delivery was a major achievement. It was made possible through a commitment to and continuous focus on value for money, prioritisation and strong internal controls and audit, arrangements strongly endorsed and supported by the Commissioners.

The mode of inquiry5.4.4

As noted here and elsewhere, Victoria stands alone among Australian jurisdictions in not having specific legislation or guidance for the conduct of a commission of inquiry or the roles of the key players in it. I do not believe this ultimately impeded the Commission. It did, however, present challenges.

The different perspectives, disciplines and work practices among the various groups that made up the Commission created some tension. Ironically, much of this stemmed from a shared purpose and a belief that the Commission must be objective, independent and rigorous in all aspects of its inquiry. Differences emerged as to how this was best achieved, particularly where more innovative approaches to inquiry and engagement were considered. Ultimately, the Commission did depart from a more traditional approach in several important respects—for example, the community consultations—and was the richer for it.

Clarity about the status of a commission as a public sector entity would assist in confirming whether certain legislative and organisational obligations apply to it. This includes legislation governing public records, freedom of information, privacy, financial management, audit and probity and procurement. Even when it was not necessary, this Commission adopted many of the principles and standards embodied in these practices. A consolidated view and expectation would assist clarity and ultimately save time for future commissions.

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Reflections

I note the recent report of the Australian Law Reform Commission on Commonwealth commissions of inquiry. A legislative framework and handbook similar to those proposed by the ALRC would assist future commissions by clarifying roles and expectations, providing guidance on the degree of flexibility available in the mode of inquiry, and supporting high expectations as to integrity, transparency and accountability.

concluding remarks5.4.5

Much has been achieved. The detail does not need to be restated. That the Commission has concluded its work with credibility and integrity is testament to all involved. Beyond its inquiry and reports, the Commission leaves an important contribution to the historical record of the State of Victoria.

It is the people who have made this Commission a successful and memorable experience—those who came to the Commission, those who shared their stories, and of course those who worked with the Commission. My thanks and appreciation go to counsel assisting, the solicitors instructing, e.law, DiData and the many others who provided advice and support.

The Commission’s staff were exceptional people, and I am indebted to them all. They were some of the best of the public sector. I thank the team managers—Mr Quentin Fogarty, Ms Kaye Fox, Ms Lana Kolyunski, Ms Kathryn Phillips and Ms Annie Tinney—as well as Research Director Ms Deborah Cope and adviser Mr Stuart Ellis AM for their leadership, professionalism, humanity and support. I also thank Ms Gail Hart for her extraordinary effort during the set-up phase and my executive assistant, Ms Cathy Giuffrida, for her unwavering support and assistance.

I thank the Commissioners for this opportunity and their support throughout an exhilarating if exhausting 18 months. It has been a unique experience and a great privilege to work with this Commission.

Jane Brockington

5.5 commissioners’conclusion

These reflections from the primary contributors to the work of the 2009 Victorian Bushfires Royal Commission illustrate the depth of commitment to this inquiry and the high standards of professionalism brought by so many to all aspects of the Commission’s endeavours. Black Saturday’s impact on so many Victorians motivated Commission staff to take on this highest of public service roles.

Personally, we found the experience of serving the State and the people of Victoria on this Royal Commission a humbling and richly rewarding experience. Our obligation to act in the public interest guided our approach both to rigorous and objective analysis of the evidence and to formulating recommendations designed to make Victoria a safer place. We dedicate our endeavours to those no longer with us and to those they left behind.

1 Australian Law Reform Commission, ‘Royal commissions and official inquiries’, Discussion paper 75, ALRC, Sydney, August—see, in particular, paras 2.19 to 2.28

2 See, for example, E Campbell 1976, ‘Royal Commission Act 1902 – 1966’, in Royal Commission on Australian Government Administration, Report, app. 4, p. 346.

3 For further discussion of the scope of coercive powers of royal commissions, see Donohue S 2001, Royal Commissions and Permanent Commissions of Inquiry, Butterworths Australia, Sydney, ch. 2.

4 Metropolitan Ambulance Royal Commission 2001, Report, Vol. 5, November, p. 65.

5 ibid.

6 ibid., p. 66.


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image 5.1 The hearing room at 222 exhibition street

Source: 2009 Victorian Bushfires Royal Commission.