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.

Before the suppression order was lifted, Iain Hall was wondering how enforceable it was against Internet publications. Meanwhile, after the suppression order was lifted, Jeremy at An Onymous Lefty was wondering how this helped anything:

Publish the names of convicted criminals, by all means, but accused – why? So that courts have an even harder task finding an untainted jury? So that idiots who don’t understand the principle “innocent until proven guilty” can get started on their revenge early? What is the benefit in that information being out there?

There’s a few different issues here.

First, as Iain noted, in the Internet age it is very difficult to suppress information about an accused effectively, particularly in a case like this where there has been global media coverage. Does a Victorian magistrate have the jurisdiction to charge people with contempt of court if they publish information on an Internet site?

The Joe Gutnick defamation case comes to mind – the defamatory material was published on a server in the US by a US company, but Gutnick was able to sue in Victoria because the damage to his reputation occurred in Victoria.

Using the same principles, it could be argued that contempt has occurred in Victoria because the sites could be viewed within Victoria, regardless of where the server on which material was published was situated. But how would the magistrate enforce it? It could be very difficult – a bit like plugging a million simultaneous holes in a very leaky ship.

I tend to think that in lifting the suppression order, the magistrate was being pragmatic and recognising that the Court’s attempts to prevent the information coming out were not working.

Unfortunately, regardless of whether the accused was named or not, I think it will be difficult for him to get a fair trial. Emotions are running extraordinarily high in relation to the bushfires. It’s entirely understandable to be angry at somebody who is accused of deliberately setting a fire which resulted in multiple deaths. Add to that the juicy tidbit that this guy has also been charged in relation to possession of child p*rn, and he starts to look less sympathetic (if possible).  But I cannot condone the formation of vigilante groups on Facebook.

Our legal system works on the basis that this guy is innocent until unless proven guilty. That’s a fundamental retributive principle: we can’t punish someone unless we know beyond reasonable doubt that he deserves to be punished. We have to have a trial presenting all the relevant evidence before we judge him. We can’t just say, “He was a kooky scrap metal guy who was always lighting fires in the backyard, so he must have done it.”

By assuming this guy’s guilt without knowing all the evidence, the vigilante groups may have exactly the opposite effect from what they want. They may cause his trial to be derailed, as the defence barristers will be able to argue that he has been unfairly prejudiced before the trial even began. Do they really want to make it very difficult to prosecute this guy? Seems to me that they need to calm down and think logically and carefully about it. The same goes for the media: they need to be responsible in the way they report information about the accused.

Update:

I do think that vigilante group perpetrators should be charged with contempt of court if possible. Their behaviour is highly irresponsible, and an example needs to be made.

[UPDATE by SL: I thought I recognised the name of one of the two admins for the main vigilante facebook group. I googled for a graphic and got a match — it’s one Darrin Hodges, best known for his role in this fine organisation. For those unfamiliar with Australian politics, the Australian Protectionist Party is best described as ‘ultra-nationalist’. Here’s a background archive for Mr Hodges at anti-racist site ‘Fightdemback’; he’s tangled up with Southern Cross Soldiers somehow too (another group that should be familiar to readers both here and at LP).]

[UPDATE II by SL: Hodges has now been removed as admin, as this discussion (and the group's main page) indicates]:

Well, I have to say that I’ve found an entirely apposite nominee, and perhaps even a winner: Danny Nalliah and his numbnutted friends at Catch the Fire Ministries — for linking the Victorian bushfires with the repeal of Victoria’s old abortion law. Obviously the God that Danny and friends are into is a right old smiter, and he’s been busily smiting Victorians in their hundreds.

Anyone who uses this appalling disaster to paddle their political/religious canoe deserves a thorough public kicking (and that also goes for both sides of the Climate Change debate). If you think you’ve got something intelligent to say, then make submissions to the Royal Commission. That’s what it’s there for. There is something beyond nauseating about doing it when fires are still raging and the death toll is still mounting, as this statement from the Australian Skeptics points out:

Representatives of the Australian Skeptics condemn the Catch the Fire Ministry for their uncritical, discriminatory beliefs and exploitation of the tragic events to promote their ministry.

I should also point out that Danny and friends were the same bunch of noodles that many civil libertarians defended when they were under entirely unjustified attack from the Islamic Council of Victoria. We (meaning the forces of free speech and free debate) won that particular argument, largely defanging Victoria’s silly religious vilification law. If nothing else the behaviour of Nalliah and his cahoots shows how graceless the recipients of support from those who really do believe in freedom of speech can be.

(And no, I’m not going to link to Catch the Fire’s website. You can find their appalling statement via the Skeptics’ site).

UPDATE: There’s an excellent links roundup available at this site. Derryn Hinch in particular is incandescent.

Fire in Bunyip State Forest - taken from The Age website. Photo - Jason South

The smoke from the Victorian bushfires is casting a pall over the mountains today, providing a sombre reminder of the devastation which occurred on Saturday. Elvis, the fire-fighting helicopter, has a flight path which goes just above my parents’ house, and has been going back and forth constantly.

Saturday was the hottest day recorded in Victoria since records have been kept, with a strong northerly wind blowing. Once, when I was traveling in Egypt, at midnight, I saw the wind blowing across the desert. I headed outside in the anticipation of a cool breeze, but when I went out, the wind was hot; like that breath of hot air that hits you in the face when you open the oven. On Saturday, it was like a wind from the desert was blowing across the whole State. A terrible day for a bushfire.

The number of deaths keeps rising hour by hour, and whole towns have been razed to the ground. Many people have also been injured and horrifically burned. Hospitals are overflowing. My heart goes out to all of the people affected by the bushfires, and I salute the bravery of those who have helped to fight the fires and to rescue people

The worst thing about it all is the possibility that at least some of these fires were deliberately lit by arsonists. Police are treating each fire site as a potential crime scene. I can’t fathom why someone would do a terrible thing like that. The Australian Institute of Criminology has a Bushfire Arson Bulletin which tries to answer the question of why people set bushfires. Apparently:

A person who lights a bushfire is more likely to be looking for some kind of psychological rather than material reward. Some may try to boost low self-esteem or social identity by showing the power they can wield by starting a bushfire. The firesetter may feel a sense of control as they see fire services rushing to deal with the fire they have created. Some arsonists will seek recognition or attention through their fires. The fire may create the chance to be seen as a ‘hero’ for reporting the fire or even fighting it. Among serial bushfire arsonists there may be a high prevalence of histrionic personality disorder, characterised by dysfunctional attention-seeking and emotionality. Some bushfires are lit for excitement or thrills. The firesetter may seek stimulation from the sights and sounds of flames, sirens, fire engines, uniforms and aircraft.

In many cases bushfires, like urban fires, may be lit under the influence of a number of factors operating together. Lighting a fire in the bush might be a way of relieving boredom and creating excitement, but also a chance to gain recognition from reporting it. A firesetter may be angry at society and also suffering from a psychological disorder, though the two might be unrelated.

It is notoriously difficult to prosecute arson cases, and only a small proportion of suspected arson cases ever result in a successful prosecution. If caught, perpetrators may be charged with arson causing death pursuant to s 197A of the Crimes Act, which carries a maximum 25 year sentence. The Federal Attorney General has indicated that perpetrators could also be charged with murder. Presumably this would be on the basis that the perpetrator was reckless and knew or believed that death would probably be the result of his or her actions (R v Crabbe (1985) 58 ALR 417). Even those who did not deliberately cause fires, but were reckless may be charged with an offence, pursuant to s 201A of the Crimes Act. It is suspected that one of the fires was caused by a lit cigarette butt being thrown from a passing car or truck into a vacant lot.

As a lawyer, one tends to feel a bit helpless; but I was pleased to see that the Victorian Law Institute has offered free legal advice to anyone affected by the bushfires. The Law Institute pointed out free legal advice could help those who had lost their homes and documents or those people who might have issues related to contracts, loans, mortgages, employment or wills as a result of the bushfires. The service can be accessed by calling (03) 9607 9550.

There are a number of Relief Funds to which you can donate. Be careful, however, of unscrupulous scammers attempting to cash in on the outpouring of public sympathy (geez, there’s some real pond scum out there).

Update

Discussion of “stay or go” policy on LP, and the comments thread delves into the best way to prevent future disasters.

Update 2

Armagnac’d has a personal post on affected friends. I hope they’re okay.

A moving piece on the 1939 bushfires at Barista.

And Guy Beres, Pavlov’s Cat, Helen at Cast Iron Balcony, Bruce at Thinker’s Podium, Tim Blair and the Hoydens all have posts too.

Another suggestion is to give blood, if you can. I would if I could, but I’m not allowed, as I lived in the UK during the BSE era – always knew I was a mad cow!

Update 3

A sensible piece from Tobias over at Not a Hedgehog.

What really annoys me is the present tendency to want to blame one cause (whether it’s arsonists, greenies, global warming or even abortion).

As I said over at Not a Hedgehog, it looks like there was a combination of causes – insanely hot weather, strong and changing winds, some instances of arson (but not for all the fires), some ill-conceived planning decisions and perhaps some ill-conceived forest management decisions and just plain old bad luck.

I also agree that if we want to stop arsonists, we should look at nipping the behaviour in the bud rather than locking these people up ex post facto – as well as being alert for signs that someone might have a problem.