Playing with fire

By Legal Eagle

Here in Victoria, the heat has been on former Victoria Police Chief Commissioner Christine Nixon and her performance during the Black Saturday bushfires on 7 February last year. 174 people were killed and many houses were lost. Nixon retired from the post in mid-2009 to become head of the Victorian Bushfire Recovery and Construction Authority.

Put briefly, the furore arose when Nixon gave an account of her movements to the Victorian Bushfires Royal Commission. Pursuant to s 5(2) of the Emergency Management Act 1986 (Vic) (‘EMA’), Nixon was the Deputy Coordinator in Chief of Emergency Management for Victoria. It is worth noting that, pursuant to s 5(1) of the EMA, Police Minister Bob Cameron was Coordinator in Chief of Emergency Management for Victoria. Cameron has not yet been called before the Commission.

According to s 6 of the EMA, the duties of the Coordinator in Chief are said to be to:

(a) ensure that adequate emergency management measures are taken by government agencies; and

(b) co-ordinate the activities of government agencies carrying out their statutory functions, powers, duties and responsibilities in taking such measures.

The object of the initial examination of Nixon seems to have been to ascertain whether, as Deputy Coordinator, she ensured that the Coordinator in Chief (i.e. Cameron) was briefed as to the magnitude of the fires. Thus, the examining counsel questioned Nixon closely about what actions she took on the day in question.

At Lines 9 – 23, page 59 of the transcript of examination on 6 April 2010, the following exchange took place:

Why didn’t you stay to brief the minister or go with Assistant Commissioner Fontana to brief the minister?—I believed that the minister would get the information off Assistant Commissioner Fontana. I believed also that the minister was being briefed by a whole range of other people as he had been in normal practice otherwise.

Did you need to be somewhere that evening?—No.

I just wonder then why you didn’t stay or search the minister out and even sit in on the minister, even if Assistant Commissioner Fontana did all the talking. Why would you not do that?—It was a practice that I believed he would get the information and he and I often spoke on phones at various times in different cases. If he wanted to, he would call me up, or I would call him up. In this case I felt that was an appropriate response.

Then later at lines 27 – 31 of page 61 and lines 1 – 15 of page 62, the following exchange occurred:

At paragraph 46 of your statement you indicate that you returned home. If you needed to come back into the IECC, how long would it have taken you on the Saturday evening?—About five minutes.

You say you monitored the situation. You continued to review the website, so you had email and web access?—Yes.

Throughout the evening were you available by phone?—Of course.

And did you speak to Assistant Commissioner Fontana during the evening?—I believe I did, yes, and I certainly got a number of texts off the assistant commissioner in continuously updating me.

In terms of your capacity to monitor the situation, is it something that you devoted the whole evening to or were you otherwise engaged and just checking on websites or emails?—No, I had a meal and then I went backwards and forwards. I was obviously listening to the radio, the ABC Radio as the broadcaster, I was aware of that, and watching television and also obviously, as it says there, other sources as well.

However, it then came out in the media that Nixon had attended a meal at a pub on the evening in question. The Commission therefore recalled Nixon for further questioning (transcript here). It transpired that she had not had contact with anyone from 6pm to 9pm on 7 February, despite the fact that information about deaths had started to come in during that time. Counsel for the Commission put it to Nixon that she had obscured the fact that she’d been out to dinner at a pub because she was embarrassed (lines 13 – 23 of page 79, transcript 14 April 2010):

And I suggest to you again that you deliberately omitted reference in your statement and in your oral evidence to having gone out for a meal because you knew it would be productive of embarrassment?—I disagree. It wasn’t embarrassing to me.

And because you knew that it would reveal your capacity to continuously monitor events was compromised during the time you were away from your home?—There was a gap of a period of about an hour and a quarter and I don’t think my capacities in any way to carry out my duties were disrupted or damaged by that.

Nixon  issued a press statement late yesterday to say that the other “personal business” on that day included a visit to the hairdressers in the morning and a meeting with her biographer in the afternoon to discuss her memoirs. However, she will not stand down from her position with the Bushfire Recovery Authority.

Now, before going any further, I should say that prior to this point, I would not have had anything negative to say about Nixon. I thought it was good to have a female Police Commissioner, and that she was an outsider from New South Wales who could shake up police processes. Nixon has attributed criticisms to gender bias, saying, “As a woman I have always been judged more harshly than some others, but I’ve understood that…” Andrew Rule and John Silvester have an article in The Age today which fairly sums up the pros and cons of Nixon’s time as Commissioner.

I read the full transcripts of Nixon’s evidence and was distinctly underwhelmed by her account of her behaviour on the day. She was not technically on duty, and accordingly, she sat back and let everyone else do the work – she didn’t want to interfere with the operations of busy people in a stressful situation. She said at one point in examination (lines 28 – 31 of page 100 and lines 1 – 2 of page 101, transcript 14 April 2010):

I went in to make sure I could offer support and assistance to both locations. I made sure people knew I was available. I believed that was the job. It was not my job to swoop in and take control. When you have good people who are far more skilled in emergency management than I am, you let those people do the job.

Perhaps I’m just bossy, but it seems to me that a Commissioner who is doing her work should interfere with the operations of her people just to check that everything is being done correctly, and that the right people are being kept informed of what is happening. (I admit here that I’m a control freak and not very good at delegating, which can lead to problems of its own at times). To me, it wouldn’t matter whether I was technically on duty or not: I would have to know that everything that could be done was being done. I would still let those with greater expertise in the field guide me, but I’d want to know what was going on. I would have suspended all personal appointments. I think those are the kind of sacrifices you make when you are a boss. Anyway, it’s for the Commission to make those kind of judgments ultimately.

I should stress that Nixon was certainly not the only person whose behaviour on Black Saturday left something to be desired, and it may be that if she had stayed, nothing would have happened any differently. Delegating to more experienced officers and attending personal appointments isn’t what I’d expect of a leader in the circumstances of Black Saturday, and it doesn’t look good, but it may be that Nixon thought that was the best approach.

Nonetheless, she should have admitted what she did freely, rather than give the impression that she was effectively on duty all day and monitoring the situation by omitting detail of what she was doing. It’s like the Marcus Einfeld situation: the thing that disappoints me here is not so much the original conduct, but the later attempt to obfuscate what happened. I’m not suggesting that Nixon’s conduct is of a similar magnitude to Einfeld’s — she didn’t swear a false statutory declaration saying a dead person was driving her car — but she did gloss over salient details from her witness statement so that it would look less damning. And, like Einfeld, she held a position of trust in the community where she was expected to uphold the law and to be truthful.

The response to the whole thing has annoyed me: generally speaking, I’d say Labor and the Left have made excuses for Nixon while the Liberals and the Right have attacked her. If the conduct had been undertaken by a certain Mad Monk, for example, the Liberals and the Right would be making excuses for him and Labor and the Left would be attacking him. I don’t understand this kind of approach. It doesn’t matter to me whether a person is male or female, whether she’s “traditionally built” or slender as a willow wand, whether she’s a Labor appointee or a Liberal appointee. Nixon lacked the honesty I would have thought that someone in her position should exemplify.

As to whether Nixon should step down from the Bushfire Recovery Authority, that’s really a separate question which depends upon how well she is performing her job in that capacity, and what is best for the bushfire victims. I think we should remember that this should be our real focus: to look after people who suffered because they were let down in various ways on that terrible day. We should also keep in mind the personal bravery of many policemen in regional areas who went around to houses telling people to evacuate at great risk to themselves.

8 Comments

  1. Posted April 17, 2010 at 12:05 pm | Permalink

    Excellent post. I have a wider concern about the Royal Commission, in that it seems to have decided to concentrate on the responses on the day and not look at wider fire-risk management policies which might lead in politically awkward directions.

  2. conrad
    Posted April 17, 2010 at 12:50 pm | Permalink

    Whether she was or wasn’t giving very good answers to her role on the day initially, I do think they are picking on her. It seems to me that the top person’s role is really for strategic planning etc. (basically Lorenzo’s wider concerns), and the fact she wasn’t there giving out orders is only to be expected. So yes, I do think you’re a bit bossy! but I think it also depends on the responsibility set — which no doubt yours are very different to vs. hers. Perhaps the equivalent would be the VC sitting in everyone’s class to make sure they were doing a good job. That would just be silly.

  3. Posted April 18, 2010 at 4:01 pm | Permalink

    A tough one. Nixon’s incuriosity is perplexing, but I can’t help thinking some of this is to do with her size. We (as a culture) don’t like fat people very much and we especially don’t like them in senior positions in the police or military. This attitude is catching, of course: look what happened to Kim Beazley. It’s also a reason why I suspect Joe Hockey will struggle to become leader of the Libs. Google the guy and you’ll see he gets compared to Shrek all over the place.

  4. Posted April 19, 2010 at 8:32 am | Permalink

    I am on a similar line to you here LE, until what I saw as obfuscation (or worse) in evidence started to come out, I largely backed her. Overall, I think I still do, but admit to being in two minds.

    The thing about emergency management is there are the hero types who jump out of buildings etc who we rely on to get it right, and the necessary and quite different skillset of policy officers, project managers, lawyers etc who manage all manner of white collar stuff beside them. Having done a little of the latter, my firm impression is that the job of the latter is to get the settings right, to facilitate, to help, to support, then get the hell out of the way so the lifesavers can do their job.

    Nixon’s job was responsible for everything, essentially, but given who she is, and other people on the ground, I would have thought the more realistic interpretation of her role during an incident would be for her to get the hell out of the way, providing support where white collar leadership is needed (such as harrassing politicians, getting other departments to cooperate, batting off media, etc).

    Her current predicament seems to be about appearances- no-one has yet asserted to my knowledge one single thing it is alleged that her more active participation would have achieved…

  5. Russell Pollard
    Posted April 21, 2010 at 12:24 am | Permalink

    Interesting post on a most interesting topic. What to me is even more inetersting is the fervour of the attacks on Christine Nixon.

    While you say with good humour that you’re perhaps a bit bossy, I say, with respect, that bossiness is not really relevant, yours or Christine’s.

    Allocating roles to clearly experienced [and in this case very senior] staff and then letting them have the space to do their work, with all of the apparatus around them that goes with the job, is hopefully what any boss would do. The question here should be more about what resources were needed but were missing, what resources will be needed if this ever happens again. Spending so much highly paid time interrogating management about their leadership styles [and none of them had led anyone through anything like this, ever], really seems to be a major distraction by counsel who seem unable to address so many other issues that go far closer to the heart of what must now be done.

    Breathing down someone’s neck while they do their job, particularly when it is full on, as it was on Black Saturday, is far less likely to improve anyone’s performance as it is to simply get in the way.

    It’s a bit of a stretch to assume that Christine Nixon’s absence or presence from the bushfire co-ordination centre caused any harm at all to the overall efforts that were taking place. It is just as likely that her continued physical presence could have added unwarranted interference, wasted precious time and human resources, and possibly even diminished the efforts of the very people she had put in place because of their admitted greater expertise in emergency management.

    She is by most accounts a workaholic and came in to work even though she was actually off duty, not to interfere it seems, but to assure herself that the people she knew should be in place were in fact in their places, doing what they were selected to do, and then made a completely logical judgement that they were doing their jobs and left.

    But not without first doing a range of things to ensure they knew they had her support should they need it, a point those who stayed have made to the Commission.

    She remained contactable . . . and how spurious is this hour by hour mobile phone monitoring nonsense? She says she took just over an hour for dinner. Why would that alarm anyone? Did anyone try to contact her without success? What is this fast developing witchunt in the media all about? Is it a case of yet more fancy lawyers trying to make their reputations in the big time before a Royal Commission, or is there more to it?

    Looking at who else is jumping into the frey might give us a bit of a clue. People of the ilk of Jeff Kennet, for instance, Any CEO knows that the easy way to increase the bottom line is to sack people and sell assets. It’s a sign of a poor CEO and it was a Kennett speciality. But Kennet also helped trash the Victoria Police brand when he condoned their use of truncheons against those who dared to protest his arrogance at dismantling communities right across the state.

    And what a contrast as a public figure he is to Christine Nixon. Simple example. She can work with the gay community. Kennett has managed to alienate much of it with grossly insensitive, if not outright homophobic remarks, about what it means to be gay, in the media. And he did this while chairing Beyond Blue – one of whose primary targets should surely be young gays whose incidence of depression and suicide remains a national disgrace. Has he stood down from anything? Of course he should, but you could bet your sanity he won’t.

    The fact that Nixon kept some prior appointments from her diary on a day off but came in to work anyway because she wanted to see if there was anything she might do that was not being done, and then left by tea time, is about as relevant as the number of times she went to the toilet, applied lipstick or made herself coffee. It’s irrelevant and I don’t need to know, No doubt counsel at the Commission will yet demand these details and then query why they were’t supplied up front.

    Christine Nixon MUST NOT resign. The snow job that our flat earth media are working so hard at, to to have her sacked from her current position, ignores the fact that is not even the job where her performance is being put under “scrutiny”.

    It would be just as logical for them to demand she lose her drivers licence and be barred from working at anything where she might contribute to the community for the rest of her life.

    The capacity of people who wouldn’t have an operational clue themselves about how to manage far less complex organisations than any Christine Nixon might be involved with, to sit in judgement of her and others, with all the pious benefit of hindsight is frankly mind boggling.

    Christine Nixon should certainly stay doing what she clearly does well and Jeff Kennet should apologise to the countless people whose lives he ruined, whose depression he triggered, and then just piss off. The community told him to do that some time ago but he keeps resurfacing like a bad penny.

    Christine Nixon should not let the circling yobbos have a victory.

    Can I just add this: The one thing I did not like so much about Christine Nixon’s time as Police Commissioner, nor about Simon Overland’s time in the role, is their constant media presence. We elect Parliamentarians!

    Police Commissioners are Public Service Heads – appointed to get on with public adminstration of a vital community service – policing. Police Ministers on the other hand are put in charge to call the final shots . . . and let us not forget it is the Police Minister who finally has the privilege and the duty of assuming Ministerial Responsibility for what happens in this, as in any other, portfolio.

  6. Elucubrator
    Posted April 28, 2010 at 8:27 pm | Permalink

    I’m intrigued that this is perceived as Christine Nixon being singled out. To be fair to counsel assisting the inquiry, I think they were pretty thorough in probing everyone previously before the commission. Russell Rees came in for far more scrutiny when it was his turn, so to characterise this as Nixon being unfairly singled out is, itself, unfair to the Commission. It’s just her turn. And I’m sure others in their turn will also be tested.

    The point Legal Eagle makes about her being off-duty isn’t quite accurate: there’s no legislative distinction between police on and off-duty. That’s purely an administrative distinction the police force makes for paying people. (It may well affect workers compensation liability if a police officer is injured.) But the law considers police to be police, with all their attendant obligations, at all times. (Albeit they aren’t expected to muck in the same way coppers are when they’re being paid and kitted out with all their gear.)

    The point with Nixon is that on that day she was the deputy and it was her obligation to ensure certain things occurred. Whether she did her job is a fair question for the Commission to ask, which might then lead on to help determine if it would have made any difference. Nixon’s slightly insouciant responses are problematic because they don’t demonstrate complete mastery of her role on the day.

    Similarly, not keeping records of what she did (or didn’t) do on the day is unhelpful in several ways. All police, of any rank, are obliged to keep notes of what they do and say so that if any properly constituted tribunal — like, say, oh I don’t know…a Royal Commission? — asks “What did you do; when; and with who?”, the rozzer is able to answer those questions. It could be questioning a shop lifter; or supervising a state-wide natural disaster, but the principle remains the same. I don’t see any reason why she should not be challenged about her performance on the day.

    I agree totally about your comments on her prevaricating in the witness box: rightly or wrongly, it gives an appearance of something to hide, when in reality she probably didn’t do any substantially wrong at all.

3 Trackbacks

  1. […] This post was mentioned on Twitter by searchtempo. searchtempo said: Playing with fire: Here in Victoria, the heat has been on former Victoria Police Chief Commissioner Christine Nixo… http://bit.ly/cCCsRl […]

  2. By Skepticlawyer » The Victorian election result on December 2, 2010 at 4:07 pm

    […] way in which the Black Saturday fires had been managed (think of how the Brumby government defended Christine Nixon despite the evidence of her egregious lack of leadership on the day of the […]

  3. […] participate in political process. I am on record as saying that I thought Christine Nixon’s evidence in the Bushfires Royal Commission was appalling — and I am also on record as saying that, although I was a fan of Gillard in the past, […]

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