The attached transcript, while an accurate recording of evidence …royalcommission.vic.gov.au/getdoc/356fc760-7e4b-47b0... · 2017. 10. 18. · The attached transcript, while an

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__________________________________________________________

TRANSCRIPT OF PROCEEDINGS__________________________________________________________

The attached transcript, while an accurate recording of

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

proofread prior to circulation and thus may contain minor

errors.

2009 VICTORIAN BUSHFIRES ROYAL COMMISSION

MELBOURNE

TUESDAY 25 AUGUST 2009(39th day of hearing)

BEFORE:

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

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

Facsimile: 9642 5185

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.CRS-Wordwave:MB 25/08/09 TUCKER XNBushfires Royal Commission BY MS RICHARDS

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MS RICHARDS: I recall Mr Tucker.<JOHN DOUGLAS TUCKER, recalled:MS RICHARDS: Good morning, Mr Tucker?---Good morning.If I can take you now to 7 February this year. The situation

with the development of the standard as at 7 February wasthat a draft had been provided to the Australian BuildingCodes Board for it to conduct the regulatory impactstatement, and that process had not yet been finalised asat 7 February 2009?---That's right.

After the fires on 7 February was Standards Australia contactedby the Victorian Building Commission in relation tofinalisation of the standard?---That is correct. Mystatement at paragraph 101 speaks to that and I am relyingon information provided to me, particularly by my deputy.

That request presumably was conveyed to you?---That is right.There would have been a variety of discussions around thattime.

And what was your attitude to the request?---My attitudewas - in fact, I do recall coming to the office onemorning in this timeframe and being told in the mosturgent sense that, through the Building Commission ofVictoria, there was the greatest desire to have access tothe contents of the standard to assist Victoria with itsrebuilding, and my immediate attitude was that if we hadthe standard in reasonable shape and nearly ready, let'sdo everything we can to assist Victoria.

Was this the first time that you personally became aware of thelong history of reviewing the 1999 edition of thestandard?---That is right. In this period post the fireI would have struggled to tell you exactly which day andwhich conversation where it became clear to me of the

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timeframes involved of the public perception of thosetimeframes. It was within days of the fire that therewere comments being made in the media about thistimeframe, which led to various examinations including howthis compared to average timeframes which are addressedotherwise in my statement.

For a time what was discussed was publication of an interimstandard that would apply in Victoria only?---That iscorrect. There were discussions essentially around theart of the possible, what could we do with the draftstandard, what could we do with the interim standard andwhat was the status of the standard proper, and thatresulted in an agreement to progress an interim standard.An interim standard is a defined offering from StandardsAustralia which is addressed in I think that samestandardisation guide we may have looked at yesterday, soit's a well established product delivered by StandardsAustralia.

Was that an offer that was taken up by the Victoriangovernment?---It was. As is outlined in my statementaround those paragraphs in the early 100s, we went as faras convening the committee, getting support for thepublication of the interim standard, preparing thatinterim standard and accidentally going live with thatstandard for about an hour and a half, I think, beforethat was withdrawn. The Victorian government - of coursewe were operating, I suppose, through both Mr Donaldsonand Mr Arnel in this approach, but of course Mr Arnel wasproviding input to Victorian cabinet and there was a limitto our understanding, of course, of the processes and thedecisions on that front. But ultimately the decision was

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conveyed back to us that Victoria did not wish to proceedwith the interim standard and progress was such on thestandard proper that the decision, the change of courseoccurred where it was then decided to be reasonable tohave finished the standard proper and to proceed with, ifyou like, a fast track ballot of that to see whether thatwould meet Victoria's needs. The main benefit of that interms of national harmonisation is that we would avoid theconfusion of having the 1999 standard active, the new 2009standard available to be called up in 2010 and a Victorianversion very similar but not the same operating in themiddle. So there was a certain logic about aiming for thecomplete standard if it could be available.

And the Australian Building Codes Board finished what it neededto finish and produced the final regulatory impactstatement on I think 16 February, the same day the interimstandard was published for a brief time?---I think that'scorrect.

There was a meeting of the technical committee, FP20, on 25February?---That's right.

For reference, the minutes of that meeting are reproduced asexhibit JDT 87. You attended that meeting?---I did.

Do you usually attend technical committee meetings?---No, infact - I'm just getting my dates clear here. I have onlyever attended two technical meetings in my time withStandards Australia, both being meetings of FP20 and bothof them post the fire of 7 February. At the first onewhere we were considering - I think it was the call toproduce the interim standard, it is recorded in theminutes, but my presence in the absence of my deputy wasto, I suppose, encourage the spirit of consensus having

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regard to what was then being regarded as the largestpeace time disaster in Australia's history. So I wasmaking a call for a real focus on seeing if we could doeverything possible to assist Victorians in the rebuildingthat was now necessary.

So you addressed the meeting in the way you have outlined andyour comments are recorded in the minutes. You thenwithdrew from that meeting?---I did.

How do you understand the meeting progressed?---I would need torefer to those minutes. I just have to get it clear in mymind that we are talking about the second of the meetingsand where they were looking at the standard proper. IfI have that context right, then the meeting proceeded towork through the finalisation of the draft of the standardso that it could be circulated for ballot purposes.

The ballot was issued to members of the committee I think on27 February and closed on 3 March?---That is correct.

And in accordance with the standardisation guide that we wentto yesterday, committee members voting negative wererequired to submit comments with their vote?---Correct.

Is it your understanding that at the close of the ballot therewere five negative votes out of 20?---That is correct.

And those votes came from the two AFAC representatives, theCSIRO representative and the two Fire ProtectionAssociation of Australia representatives?---That'scorrect.

That meant, did it not, Mr Tucker, that consensus had not beenreached in accordance with Standards Australia's rules forconsensus?---Yes. It meant that, in accordance with theformula we went through yesterday, and we need to touch onthe fact that the FPAA as an organisation supported the

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standard progressing - - -I will come to that in a moment?---But for my purposes, where

I come into the story, there were three outstanding votes,not five, for the numeric sense and the numericrequirements, the 67 per cent and the 85 formula that wereferred to yesterday, were passed. The issue thatremained was the, if you like, sustained opposition fromsignificant parties to the standard.

With the two FPAA negative votes, the 80 per cent threshold wasnot passed, was it?---I would have to check that. I havenever done the formula. I accept that, as I say, thepoint where I came into the discussion the FPAA wasrecorded as positive, so I haven't done those maths.

That had been achieved, had it not, by Mr Michel, the projectmanager, contacting the president of FPAA and seeking theorganisation's support for publication, notwithstandingthe reservations expressed in the negative votes of thetwo FPAA representatives?---The spirit of what you saidI agree with. As to who spoke to who, I don't actuallyknow.

But by the time you became involved, that issue had beenresolved with the FPAA?---That is right.

But you still had the issue of a major interest maintaining anegative vote, and that interest of course is AFAC, whichrepresents all of the fire agencies in Australia?---Yes.

How did Standards Australia proceed to deal with thatmaintenance of a negative vote by a major interest?---Thediscussions initially amongst Mr Michel and my deputy -I recall them being in the team as we sat around anddiscussed this - went along the lines was there any pointin further discussing this with CSIRO or AFAC, to which

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I was advised and accepted the advice that these were verywell established and entrenched positions. I have since,going back through some of those minutes, have seen thatindeed this discussion goes back many, many years.

The major sticking point was whether deemed-to-satisfysolutions ought to be included in the standard for theflame zone or BAL-FZ?---That is absolutely the case. Thatwas the central issue that was put to me as theoutstanding issue, that each of those parties had theconcern about building in BAL-FZ. There were other issuesrecorded in the ballot for the CSIRO, but it was put to meand I accepted that these had been addressed by thecommittee and had agreed would be listed in the preface asto be addressed in forward work, remembering the standardsare living documents and are continually reviewed andaddressed, and therefore it was put to me that - and inturn put to our standards development committee, that theissue, the sticking point, the barrier between Victoriahaving a standard and not having a standard in therecovery period was whether the standard would provisionfor building in BAL-FZ in terms of the risk assessmentframework.

Having made that assessment, there was a meeting of thestandards development committee, which in the end can deemthere to be consensus even where consensus has not beenreached at committee level and the minutes of that meetingare JDT 91?---Yes.

That committee took place by telephone?---That's correct.You explained the situation as you have just outlined it to us

and recommended to the committee that, notwithstandingthat the consensus requirements had not been met, that the

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standards development committee should publish thestandard in the form that had been submitted toballot?---Almost. What we indicated was that there wasone sticking point. That sticking point was BAL-FZ. So,the proposal was put forward, to accord with theprinciples and requirements of consensus, was to ask thestandards development committee to deem consensus had beenachieved on all matters but BAL-FZ and to list in thepreface and at the relevant points in the document thenotation that consensus had not been achieved on thisissue. It was put to the SDC that through this approachwe would essentially carve out and identify the issue thathad not been agreed and provide the many years andthousands of hours of good work and progress to the ABCBand to Victoria at this time of need. So it was seen tobe a way forward that would offer very substantialimprovement over the 1999 standard.

The standards development committee agreed at its meeting on5 March that these words should be inserted in the prefaceto the standard: "It is important to note that agreementwas not reached by the committee for construction inBAL-FZ flame zone. When applying this standard inrelation to BAL-FZ parties must refer to the relevantauthorities having jurisdiction for buildings in thatparticular location"?---(Witness nods.)

That decision was communicated to the Australian Building CodesBoard which was also meeting on that day?---Correct. Infact, our meeting had been designed of course to meettheir meeting schedule.

What response did you receive from the Australian BuildingCodes Board in relation to the notation?---I received a

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telephone call. So, the decision was forwarded to themelectronically and at a point in the morning I received acall from Mr Donaldson suggesting to me that all hell hadbroken loose at the ABCB, that there was absolute despairthat Standards Australia as a non-government body did notseem to understand the difference between non-governmentroles and government roles, and that there was the mostextreme level of anger and upset occurring across alljurisdictions of Australia. When I discovered that theywere meeting in Sydney, which is not by any means, asI understand it, typical; when I discovered they were buthalf a kilometre from my office, I offered to immediatelyappear before them, and that is exactly what occurred.

There was then a discussion about this issue that you hadcarved out in the notation that was submitted tothe Australian Building Codes Board?---There was whatI think would be called a robust discussion where we bothgained insights from each other about the processes thatconstitute consensus standards and our obligations.I certainly further appreciated the regulator perspectivethat it was a matter for regulators and that they were thecentral coordinating agencies for every single governmentin Australia and that they took responsibility, bothcollectively and individually in their jurisdictions, forwhat would happen with BAL-FZ. We, having discussed ourrespective process requirements, I offered to retire tothe room next door and to be honest I can't tell you whojoined me but some officers from the ABCB came into theroom and over the course of probably an hour or an hourand a half we had a go at coming up with some revisedwords. What you have recorded in those minutes is the

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wording that was achieved in a break-out meeting. I washaving had those words put to me and found them to besatisfactory from my perspective.

And the words are a redraft of the notation: "Whilst themajority of the committee support the full standard,unanimity was not reached on aspects related to BAL-FZflame zone. The committee will be asked to review thisstandard including flame zone construction in light ofrelevant outcomes of the Victorian Royal Commission intothe February 2009 bushfires"?---That's correct. I thentelephoned each of the members of the standardsdevelopment committee and, to summarise, and we had somevery significant discussions, very responsible discussionsabout risk and scenarios projecting forward and it is fiveyears in the future and there has been another fire andmore properties have been lost and what does this mean interms of roles and responsibilities and clarity. Insummary, it was the view of the SDC that these compromisewords were in fact clearer and more articulate than theprevious words we had taken in. On the issue of clarityof responsibility between Standards Australia as anon-government body, we even had a stronger view in ourown minds that, should we have gone in the directionrecommended - or more than recommended - balloted by AFACand CSIRO, Standards Australia as a non-government bodywould be stepping well outside reasonable bounds by makingdeterminations that would impact the value and capacityfor people to build on their private land ownership. Wewere therefore imagining the class actions and otherthings that would fall to Standards Australia for havingexceeded its authority.

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By not prescribing, or not including deemed-to-satisfysolutions?---Exactly. By in effect having anon-government body make determinations that were mattersfor regulators by ruling out the capacity to build incertain land deemed BAL-FZ.

It is not ruling out the capacity to build. It is just notgiving deemed-to-satisfy construction solutions in thosezones?---That's the understanding I now have. At the timeI probably had a more simple notion of what we were doing.The view was that by excluding this from the standard myunderstanding is we were significantly drawing a line asto whether building was possible in that land.

COMMISSIONER PASCOE: Just for clarification, is it not thecase, though, Mr Tucker, that a standard developed byStandards Australia still requires the acceptance andauthorisation of the relevant jurisdiction, so that wouldI be correct in surmising that their anger was that youhad deviated too strongly, the Australian Standardsstandards development committee had deviated too far fromwhat they found to be an acceptable level of risk, ratherthan you having encroached on their jurisdictionalboundary?---No, it's the latter. It is simply the latter.

But you don't have, as a non-profit, non-government body, youdon't have jurisdiction over their regulationmaking?---Absolutely not. They have their own, as hasbeen discussed, requirements for the documents that theywould call up. It was absolutely clear, if you like, thatwhen I offered to retire and go next door there was no waythey would call up the document with those words in it.It was totally unacceptable to them. It is a fact, andthis is where I use the statement I work on the business

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rather than in it, so I must be careful here not tooverstate my experience. But, as has been indicated, wehave hundreds of primary reference documents and thousandsof secondary reference documents that support the buildingcode and there is a very clear sense of what is acceptableand unacceptable within the building code, and more sothan probably any other area where we do our work there'san attempt to fit into that framework and structuredocuments that are easily acceptable and able to beincorporated. For example, Mr Michel, our fire projectmanager, had a very strong sense always in designing andguiding the committee with this standard of what would beacceptable or not acceptable to the ABCB. So, if I may,the essence of our recommendation was that we were notdealing with a profound - an issue of, I don't know,timber interests asserting dangerous elements in supportof their own industry ahead of objective scientificreview. I regarded this, in this recommendation and wayforward, and I have stated this very clearly and in othercorrespondence that has been submitted to the Commission,that there were nine places in Australia where thatconversation should be taking place and they were thecabinet rooms where minister-to-minister, agency-to-agencyshould be having a discussion, a determination aboutgovernment-to-government powers in relation to theplanning and building process. This was not a matter fora non-government standards body to intrude. So, to thisminute I absolutely stand by the decision we took. Ouroption between a rock and a hard place was to deliverVictoria nothing by being rejected from the ABCB, hadI walked out of that room. Instead, what we achieved was

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we delivered the majority of that standard, a consensushaving been achieved with a very strong view which I holdto this day that the 2009 standard was stronger than the1999 standard. So we were moving forward, we were movingforward with an undertaking that the BAL-FZ matter was amatter before government and I would like to draw yourattention to the correspondence from the chairman of theABCB which is included in my exhibit 92 where the chairmanwrote to me stating that: "The board resolved on 5 Marchthat the standard should contain BAL-FZ deemed-to-satisfyconstruction provisions, noting that if a state orterritory jurisdiction did not wish to use the BAL-FZdeemed-to-satisfy construction provisions it could deletethem in calling up the standard through the variation inthe BCA. I note in this regard that the preface to thestandard will address the need for review of the standard,including this aspect, in the light of the Victorian RoyalCommission." So I believed we as a non-government body hadresolved the issues that were within our province, thatthe issue of BAL-FZ and the government-to-governmentdiscussion was ultra vires for a non-government body andI was very satisfied that I had eye-balled every singlegovernment in Australia in reaching that agreement, whichwas then put back to me immediately before I left theplace in writing in that letter from the chairman. SoI believed we had struck an entirely responsible approachthat delivered well within the spirit, principle andcriteria of consensus.

MS RICHARDS: If we could just call up the document to whichyou have been referring, (WIT.7501.005.0146). It is partof JDT 92, it is the second document. The part of that

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letter to which you have been referring appears under theheading "BAL-FZ deemed-to-satisfy constructionprovisions"?---That's correct.

The way you analyse this issue now, as I understand it, is thatresolution of this issue whether there should bedeemed-to-satisfy solutions in the flame zone is an issuefor each government and the competing views of the fireagencies on the one hand and the building regulators onthe other are to be resolved by government, not byStandards Australia?---That's correct. But I would add tothat that there is a clear undertaking for the committeeto revisit this post the reporting of this RoyalCommission and it is therefore in effect included in thatforward work plan which includes addressing all the otherissues raised by the CSIRO. In fact, I am advised that,as we speak, the committee has continued to operatefunctionally with FPAA, AFAC, CSIRO, absolutelyconstructively and cooperatively continuing to take thefuture versions of 3959 to meet the best possible needs ofAustralians.

If I can just go to one more meeting of FP20. I think it wasthe second of the technical committee meetings youattended on 23 April. The minutes of that meeting areexhibit JDT 94, and if we could go to the second page ofthose minutes, please?---Yes.

This was the first meeting of the committee after thepublication of the standard and its call-up in theVictorian interim regulations and its adoption by theABCB?---Yes.

We see there under heading 1, "Open meeting" et cetera, youagain addressed the meeting?---(Witness nods.)

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You expressed your concern for the inaccurate and potentiallydamaging media releases. To what were youreferring?---Well, there had been a series of mediareports and in particular, I suppose, on the AM and PMprograms of the ABC there were exchanges involvingspokespersons for AFAC and for Standards Australia, butthere had also been some public media reports again oneither AM or PM by the CSIRO. There were two rounds tothat, or from my point of view there were two issues.I must stress that on each occasion I only ever respondedto the media. I did not initiate. The strategic issuesI was seeking to address on the first occasion whereI spoke to PM, I believe, which would have been in earlyMarch, I was - having arrived at a consensus position andin effect having put the standard forward to allgovernments but to Victoria, I then felt it was importantto stand behind that document and the particular focus onmy mind was this very sensitive time for Victorians wherethe government and its agencies were seeking to assist therebuilding. So my great concern with the public commentsfrom the CSIRO initially and then from AFAC was that thiswas undermining the confidence of Victorians in thedocument. It seemed responsible that Standards Australiaas the organisation who had carried this forward shouldget out there on the public record and express itsconfidence that we had a sound standard with a tailoredand improved assessment methodology with six categoriesthat better matched the needs and from which designrequirements can then be determined, and they were theessence of the first round of messages. The second set ofmedia messages were of quite a different nature. There

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were suggestions run on now the AM program going to theheart suggesting that Standards Australia was anirresponsible, skewed committee-captured organisation thathad no regard for independent scientific advice and wasskewed in the interests of and captured by industryinterests. I felt that was well beyond the issue of fireand Victorians. I then was defending the credibility andthe authority and the due process applied by StandardsAustralia across the body of its work.

AFAC having in fact written to you as chief executive ofStandards Australia expressing concerns about aspects ofthe process followed in publishing the standard, how haveyou responded to those concerns?---There was an exchangeof letters and I have reviewed those quite recently torefresh myself because I was overseas and my deputyresponded, but I'm very satisfied and endorse the responsethat was given. I think I would summarise that that AFACexpressed their concern that, despite their sustainednegative vote, the standard proceeded under deemedconsensus, as I have explained. The response from mydeputy indicated that due process was followed, that therewas a provision in our rules and structures for a deemedconsensus and that this was what we regarded as thegovernment-to-government issue, so the same argument orposition I put to you this morning about this being amatter beyond the bounds of a non-government agency andencouraging AFAC, whose members were predominantly if notentirely government emergency service and fire bodies,both rural and metropolitan, to take these matters upwithin their own jurisdictions and not address them to anot-for-profit, non-government body.

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In relation to the first category of media comment, if youlike, the technical issues that had been raised both byCSIRO and AFAC in the media, how have those issues beenaddressed between Standards Australia and CSIRO to beginwith?---Okay. There was correspondence between the CSIROand the Victorian government, and I know that is recordedhere, and directly or indirectly that was also copied tothe Commonwealth and Minister Carr. The ABCB developed adetailed response to those and therefore I was aware ofall of that, but that was not a matter that I directlyparticipated in. I received a request - my officereceived a request to meet with the CSIRO. Again, becauseI think I was overseas, my deputy met with the CSIRO.I would have difficulty now telling you what I do knowfrom the outcomes of that meeting is that there was anexchange of views, there was an agreement from the CSIROthat they would pursue the matters through committeestructures with regard to committee in confidence and thatthey would not be taking these matters further up in themedia. I think there were further media issues despitethat undertaking, but that is neither here nor there. Sothey asked for a meeting, we had a meeting. It doesn'trelate to this, but I have separately met with the headsof the relevant divisions of the same divisions of CSIROand imagined that's what our topic was going to be, andinstead we had a very fulsome and positive discussionabout how we would work together in the context of the newbusiness model. So I would describe relations with bothAFAC and the CSIRO as positive, moving forward, focused ongetting the job done and I suppose what is noted in thisrecord that you are drawing me to here, I made it

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absolutely clear that all members knew that there wasdispute resolution and independent appeals processes andencouraged them to make themselves familiar with that andto pursue those if they continued to have concerns aboutthe deemed consensus approach that we took and no furtherdispute resolution and no independent appeal was lodgedwith ABSDO, and following the processes we have justdescribed, the exchange of letters with AFAC or thediscussions with the CSIRO, in essence the matters weresettled. We weren't agreed, perhaps we agreed todisagree, but I think in spirit for the purposes of thisCommission we are getting on with future versions andeditions and amendments to 2009. That is the sense I haveof where we are at today.

It is your understanding, is it not, Mr Tucker, that thetechnical issues that have been raised by AFAC and CSIROare currently under review by FP20?---That is correct, andjust to be clear with regard to flame zone, there will bea timing issue. There are all sorts of assumptions madeabout how that may or may not be addressed by thisCommission, so I imagine they will be continuing to - I'mjust coming back to the timing and how they do that is notreally a matter I can comment on, but I would imagine theywould be waiting and having regard to the timeframes ofthis Commission in addressing that issue.

Thank you, Mr Tucker. I have no further questions. Do theCommissioners have questions at this stage?

COMMISSIONER McLEOD: Can I just pose a general question,Mr Tucker. Does this issue illustrate perhaps what somemight see as a weakness of your process, yourorganisation's process, in the sense that it would have

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been well understood, I would have thought, that theoutcome of a new building standard ideally would be theadoption of that standard by governments around thecountry for their purposes so that the members who aredealing with the content of the standard would have beenwell aware that the purpose of what they were doing was toprovide a template that ideally would become a uniformbuilding standard adopted and supported and policed bygovernments and that in the course of the deliberations itwould have also been clear to the members of the variouscommittees that were looking at this that the people whowere in a position to speak from a government perspectivewere all of a particular view and yet, because of therules of operation of your organisation, they wereoutvoted by other members who weren't of a mind to besensitive to the position being put to them by governmentrepresentatives who it could be assumed would have beenclose to their governments in terms of acceptable outcomesand that perhaps a slavish approach of not bending yourrules - not that I'm suggesting the rules needed to bebent - but that your process was impeccable but theoutcome was perhaps unsatisfactory?---Commissioner, theyare excellent points and I think there are perhaps severalin there. One is, firstly, I think there are improvementsthat can be made to our rules and processes from whichthis is a significant learning, but we get many developingthe 7,000 standards we do, we have many such lessons, andI think the key one for me is, as I stated yesterday, itis unacceptable to hold a sustained position ofopposition, in effect to veto a standard if it is aphilosophical position, for example. You know, if we do

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forestry standards and if you're a green group and if youjust don't want to have forests at all, in our world it isall about the technical position and the technicalarguments. I think there is room to consider this linebetween government and non-government and to see whetherwe can't also address the issue, where matters are, if youlike, ultra vires for non-government, are matters forgovernment determination, that they really should bemore - I think there is room to build that into the rulesand say that is not a matter where we are going to allowthat to significantly stop what we do. The second pointyou raise is, and we have to look at this around ourcommittee room, we could say you've got the ABCBcoordinating for all governments and you've got, if youlike, CSIRO and AFAC on - they are all government bodies,so there is one way of carving them to say they are allgovernment, but there is another way you can divide theminto regulator versus scientific, versus - so that's quitea challenge, I think. What that leads to, and as wasstated earlier by counsel assisting, we are reviewing ourconsensus rules and we are reviewing our disputeresolution and arbitration systems. It is my predictionto you that we've got a lot of work to do, because onceyou start taking the lid off that box, the verysignificant issues about who is the appropriaterepresentative, are they speaking from an authorisedposition, how are their positions defined, so I think wehave a lot of work to do on that front to improve thisgoing forward. The other position I would just put to youhistorically, I suppose, and this is very important.Standards Australia is principally non-government. As one

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of my directors used to express it - it is a little bittoo narrow, but I think it will make the point - forindustry by industry. We have to remember that in essenceit is the non-government coming together to findnon-regulatory solutions to issues. The fact that theyare sometimes called up by governments is a verysignificant factor and where that is going to happenI agree with you they should be highly designed. But inany solution we make we must not get too confused,otherwise we will become a sort of de facto regulator ofgovernment and lose that essence that we really are thereto provide support for non-government positions informedby governments, informed by science, informed byindependent academic research and expertise. I'm sorrythat's a bit complex, but I think in short you're right.There is a lot of learnings for us, we are looking atthose rules, but we are going to have to be very carefulin making any alterations not to sort of throw the babyout with bathwater. The magic of our process is peoplecoming together on difficult issues and reaching agreementand understanding each other's positions and hopefullyagreeing frameworks that can be applied across inpractice.

Perhaps to extend your analogy, in some circumstances perhapsthe government should be regarded as industry?---That isright. For our purposes within our process they are seenas - we actually separate - I was looking at the issues ofbalance of this committee and my expert colleagues in thisspace differentiated government, meaning central agency,from regulator, who are applied in a practical sense, fromscientific expertise. You force me to - you encourage me

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to say this: that one of the criticisms, as I said, whenyou take the lid off our process and start to identify it,I could sit there - and the example that was given to mein our recent review of consensus is the Department ofDefence, which is a very important user and contributor tothe standards. I could properly allocate them indifferent circumstances and on different committees toalmost every sector within that space. We could do thattoday with CSIRO. Are they government? Are theyscientists? Are they independent research? So itrequires careful consideration as to just what box you putthem in and it does relate on a case-by-case basis to therespective situation.

COMMISSIONER PASCOE: Mr Tucker, without asking you to envisageyour own demise, what would prevent the ABCB establishingits own committee to develop standards? Let's takebunkers, but even more broadly on building within firezones?---Firstly, if I can just restate, as indicated inthat Productivity Commission review, many governmentagencies do develop standards; occupational health andsafety, industrial relations, ARPANSA for nuclear safetyand many others in Australia. Indeed, the building codesboards as we speak in the fire space are looking atdeveloping some separate codes in the sprinkler spacewhere they don't agree with what the consensus viewarrived at by Standards Australia is. So there is nothingdramatically radical in what you are suggesting and,indeed, as we have heard today, because of our financialissues and we are basically saying, "Well, it's themarket," we expect and are hearing back from in particularthe building codes committee, I think we are going to see

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more standards developed in different ways, whilst peoplecome to terms with the realities of the effort and theways of arriving at it. So, to answer your question morespecifically, for a greenfield standard, for a standardthat doesn't exist, it is pretty simple. The ABCB inwhatever manner can devise its own code or standard and,as has been discussed before this Commission, they have aprocess for referred documents that is contestable andcompetitive and allows those to be called up andrecognised. Where the challenges would lie is inamendments or modifications to standards that havehistorically been handled by Standards Australia becausewe hold the rights to those and we have publishingarrangements. So, for example, if there's no standard onbunkers, then the ABCB would be totally free to choose howit might arrive at a bunkers standard. To take thebuilding in bushfire-prone areas, a 3959 and take thatdown a different path would require either a complete walkaway and abandonment of this process and starting fromscratch without referring any of the content, but if itwished to take this standard and take it in another path,there would be a copyright, intellectual property rightsnegotiation involved. Otherwise it would be an illegalact infringing upon the rights of both Standards Australiaand its publishing partner, SAI Global.

COMMISSIONER PASCOE: Thank you.MS RICHARDS: I understand that the Commonwealth have some

questions and Mr Houston may have some questions,depending on what the Commonwealth ask.

CHAIRMAN: Yes.MS McLEOD: If the Commissioners please, I expect to be 30 to

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40 minutes.<CROSS-EXAMINED BY MS McLEOD:Mr Tucker, just to be clear, when I say I appear for the

Commonwealth, I appear for the Department of IndustryInnovation Science and Research and for the AustralianBuilding Codes Board. CSIRO are separately representedand the Commonwealth does not appear for AFAC. Can I askyou some questions about your statement. Do you have thatopen in front of you, Mr Tucker?---I do.

Around paragraphs 15 and 16, the technical committees ofStandards Australia, as I understand it, including FP18and in this case FP20, are the committees as you said thatdo the ongoing technical work of reviewing thestandards?---In those - in the areas as you defined them,yes. There are many others.

Yes. They are two examples in this case?---Correct.FP20 is the relevant committee you said concerned with 3959,

the construction in bushfire-prone areas, but thatcommittee doesn't purport to deal with matters other thanconstruction in bushfire-prone areas, does it?---I believenot, but I would be careful in saying that I don't pretendto know the full business of FP20 beyond this standard.

One of the issues that you have resolved by the notation in thepreface is to indicate that the areas where there couldnot be agreement on how to deal with matters within thestandard were dealt with by the preface saying, "We aregoing to look at them in the future"?---That's correct,and there's another notation in the foreword in relationto BAL-FZ.

In fact, when you approved or adopted this standard you wereaware that the Royal Commission and its terms of reference

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were already in place?---Correct.And so that got a mention as well?---Correct.As a general statement, do you agree that the committee

considers new research and advances in technology andtries to bring those matters into play in the standardfrom time to time?---Absolutely.

Is it the intention that the standards, including 3959, arebased on science and evolve with advances inscience?---That is correct. If I could say in inquiringthe improvement of 2009 compared to the 1999, it stated tome that that really is a very substantial move fromempirical to a scientific and risk-based approach.

You spoke yesterday about the desire for consensus oncommittees?---Yes.

And the various deeming provisions. Am I correct in sayingunanimity is not always possible but it is certainly thedesire in every case?---I will say no because within thestandardisation guides that I have refreshed myself on andwhich are included here it actually makes the expressstatement that consensus does not mean unanimity, becauseunanimity in large groups is almost impossible. It isabout arriving at an agreed, workable position to goforward.

Perhaps you misunderstood my question. Unanimity is desirablebut not always possible?---Correct.

You were asked yesterday why it took so long for the review of3959 to achieve the new version, and your answer I thinkcovered such issues as overseeing the work of many othercommittees and management of the process. I wonder is itpossible that new items raised for consideration over theyears that the FP20 has been reviewing this standard held

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up original matters that might have been agreed to, so asnew work and new science came to the fore, the work of thecommittee turned its attention to those newissues?---I need to say that, as has been stated here thismorning, other than the two appearances I have had beforethat committee, I have to be very careful to say that I amnot really intimately aware of the operations of thatcommittee at all. I have of course read the minutes as wehave supplied them to the Commission, but I suspect thatquestion will be better directed to Mr Eadie.

Can I ask you this general question then. You mention theinterim standard?---Correct.

So there is obviously a possibility for interimstandards?---That's right.

With all standards?---That's right.In this case it was considered publishing an interim standard

in anticipation of referencing in the code. Would thathave occurred before a ballot process?---I need to clarifythat. If I might just refer to my statement for a moment.I have to continue to say I work on the business ratherthan in it, so I'm not the expert in this process. Myunderstanding is there was an agreement by FP20 to issuethis standard as an interim. I will stand to be correctedon this, but my best endeavour to answer your question isthat an interim standard is in fact released as a draft.It does go without a ballot and it in effect becomesalmost like an open draft for comment and there's a timelimit which I would need to remind myself of. I think itis either 12 or 24 months maximum for an interim standard.I think the answer to your question is yes, it can gowithout a ballot, and interim means it has not achieved

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consensus, it has not been subject to a ballot. It cannotclaim to therefore be a high order consensus document andit is in effect an exposure draft which can be used in apractical purpose to fill a void.

The aim being that regulators can reference the interimstandard if they wish?---Correct.

And it can be subject to ratification processes later?---That'sright, and this would have been - in fact it is statedhere on paragraph 105, "Australian standard interim3959-2009 (Victoria)", so it was a very specific offeringjust for the State of Victoria to meet its needs.

My question is more broadly with these standards, given thetime it took for 3959 to develop, is there a process forpiecemeal revision of the standards as certain chunks ortopics are agreed to?---Yes, so if we go back to the1999 standard, for example, it had two major amendments inthe early 2000s and there resulted a point, and againI will have to check the records here, but somewherearound 2002 or 2003 where they went, "Look, enough ofamendments, we have to actually move from this empiricalto the scientific approach," so there is a point where youcan amend the standard and then there is a judgment callabout where it really needs a substantial refresh and thatis a decision that rests with the relevant committee.

In paragraph 16 you talk about the ballot process there. AmI correct in saying that the process is that whenStandards Australia or the relevant committee thinks it isclose to a consensus on proposed amendments, it takes aballot of members?---Correct, and that must be after it'sbeen through public comment, so the process goesbasically, as is stated in my statement, proposal,

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evaluation, development, public comment and then ballot asa final point seeking with a constituted members vote toachieve consensus.

So members of the committee would have an opportunity toexpress grounds for opposition in the public commentprocess and in the ballot?---And in their day-to-daycommittee activities as it progressed, yes.

What is the purpose of having members state grounds foropposition in their ballot?---The authority - in essencethe whole process must be transparent and auditable. Soit is a requirement, if you like, under ABSDO and itsrequirements that all negative ballots be addressed andtherefore by having those grounds one can then have - itis all about clarity. You have to know the grounds inorder to know how to address them and whether they aresort of technical and therefore in scope for addressing, aprocess which is a different level or, if you like, ultravires and not matters to block consensus.

So transparency and the consensus process are both things thathave to be aimed for or achieved in order to meet theinternational requirements?---To meet national and, that'sright, right through to our WTO obligations, yes.

The purpose of stating the grounds for opposition, or one ofthe purposes might be, can I suggest, that it also helpsyou to distinguish between philosophical objections, asyou have described them, and technical grounds ofobjection?---Correct.

We are told that AFAC with two votes, CSIRO with one vote andthe fire protection association with two votes, votedagainst the adoption of the standard, although the fireprotection association was later satisfied and withdrew

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their objections?---That's correct.Can I just ask you about the numbers. We have from Mr Eadie's

statement 19 people, including those two from AFAC and twofrom the fire protection association on the FP20. Soafter the fire protection association withdrew theirobjection, I work that out as 3 out of 19 or 16 per centin opposition. Now, would that not meet your 80 per centof the membership approving the committee and thereforeconsensus?---If I look at exhibit 90 in my papers, JDT 90,the figures that I have and the ones that guided my roleand what we took to the SDC suggests that there were 20votes because I have here a figure in front of me - sorry,no. I think the way I'm reading that is - yes, 17 out of20 voted affirmatively, so that's 85, well ahead of therequired 67, and 17 out of 20 of the votes received wereaffirmative, which is 85, ahead of the 80. So I'm notsure - if there is a difference between Mr Eadie's figuresand mine I would need to take advice on that.

It may just be that the composition of the committee wasslightly different at the time, but it would then followthat you thought you had a major interest votingagainst?---That's correct. It was regarded that both AFACand CSIRO were major interests.

So that prompts me to ask how do you define a majorinterest?---Right. That is a matter of judgment. Thatrequires careful judgment with regard to the relevantstandard and the relevant committee and the relevantparty. If I can try and give a hypothetical example. Ifwe are dealing with protective clothing for firefighters,I would have thought that the firefighters' union would bea major interest. If we are dealing with electrical

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conduits connected to raising ladders on a technicalmatter, I'm not sure that the firefighters union is amajor interest. It may not be a good example; I'm justtrying to give the example that it is relevant to thecircumstances and the standard as to who is regarded asmajor.

Do you know if any decision or discussion was taken withinStandards Australia about the composition of the voteagainst and whether it was a major interest or not?---Itwas accepted that it was a major interest. In anydiscussion I was in no-one ever said there was not a majorinterest. A little bit like the complex conversationI had with the Commissioner earlier, there werediscussions about, "Hang on, if you've got AFAC here andABCB there, does that really - they are all government."But that is not how it was looked at. It was treated thatthey were major interests and that they were indeedrepresenting specific scientific and practical insightsand they were therefore treated - whilst the deeming tookplace on the basis we talked about, at no point did anyonesuggest that either of those parties were not majorinterests.

Can I just correct you there. You do understand that AFAC arenot government, don't you?---Well, and I have to say thatAFAC's members are fire brigades. Yes, I understand thatthe body is a - but its members are state governmentagencies.

That's what you meant when you said they weregovernment?---Thank you. That's what I meant.

We will ask CSIRO and AFAC about their stated grounds ofobjection to the ballot in due course. But you agreed

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with Ms Richards that the sticking point, as you put it,or the basis for their objection was this issue ofconstruction in the flame zone, whether it was to be doneby deemed-to-satisfy provisions or whether individualassessments were required?---I would have to say at thetime of this decision making, whether I had that absoluteclarity - I understood that we were talking about whetherBAL-FZ would be included as a category in the riskassessment and how the design requirements would beconstructed around that. I'm just saying I probably havea better insight into the deemed-to-comply versusindividual tailoring now than I did at that time. I sawit as a more absolute thing at the time, that it waslargely deriving whether or not one could build in BAL-FZat all, but that's in my mind I'm just telling you.

We will certainly clarify that with them if we need to. Youmentioned the appeal process at paragraph 125 of yourstatement. You say there was no appeal and effectivelythe concerns were settled with parties agreeing to moveon?---Yes. I want to be careful in using the word"settled" because they haven't gone away. I'm notsuggesting that positions have changed and now we are allheartily in agreement that BAL-FZ should be in thestandard. What we have agreed to do is get on with thisdynamic standard.

Perhaps the word is "resolved"?---I think agreed to disagreeprobably more, and that our efforts should all go into thefuture and the work rather than disputing or fighting overdecisions and actions that have already been taken.

So back to the ballot process. If the standard achieves aconsensus in the ballot process, it is then considered by

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the Australian Building Codes Board for adoption byreference into the Building Code of Australia?---Yes.

As we have heard, the board, that is the building codes board,also conducts the consultation regulatory impactstatement?---Correct.

Before deciding to do that, and some members of the technicalcommittee have an option during that process as well tomake a comment and raise grounds of objection?---Ofcourse. If you like, it is a completely different processwith a different role, but, yes, it is an opportunity toraise parallel issues.

We know that the board, that is the building codes board, has arole as a member of the technical committee. It hasmembership on that FP20. But you also mentioned it has arole in oversight, in encouraging development and inreaching consensus as well?---That is right, so it has twodistinct roles. One is within this technical committee,being one member, where it is simply a member, wheregovernment is a member, it has no special status. Thereis then a separate role in determining whether thatstandard is suitable to call up, where it is theregulator, where it is a decision maker and where it hasan absolute power to make decisions, and they are twoquite distinct roles. As I have said earlier in relationto some other standards, we don't always agree and thereare situations where standards are not adopted because theABCB does not agree and some of those relate in the firespace.

You talked about meetings with the some of the members - I'mnot sure if you identified who - of the ABCB on 5 Marchand you described it as a meeting at which all hell broke

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loose. I take it this is a reference to the meetings atparagraph 118 of your statement?---That is correct.

I should just indicate to the Commission that this paragraphdidn't alert me to the fact I needed instructions aboutsuch a meeting. It may be necessary - we will call someevidence from Mr Donaldson. Obviously I can't speak tohim at the moment because he is in Paris, but it may benecessary to put some matters back to Mr Tucker in duecourse when I have had a chance to get instructions aboutthat. It may not be an issue. I just reserve my positionabout that?---Can I just clarify that when I said all hellbroke loose, that's my best recall of Mr Donaldson phoningme to say, "Wow, we've had a reaction here." I was not inthe room present at that point. By the time I arrived wehad a very robust discussion and the members were the fullmembers present on that day of the ABCB. It was a roomwith 20-odd persons in it representing all states and theCommonwealth.

Just to be clear, you were present or you weren't present inthese discussions?---I was not present when our writtenadvice of the decisions of the SDC was initiallypresented. I received a call from Mr Donaldson to say,"Wow, all hell has broken loose." I won't attribute thosewords to him, but that is the spirit of what I got fromhim, "Wow, we've got a reaction and a problem here becausethey don't think you understand the difference between agovernment and non-government," to which my reaction wasI don't think they understand what a consensus processrequires to be a credible organisation when you are notgovernment. So I had the spirit through Mr Donaldson thatwe had an issue and so I then offered to come down and

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that was gratefully accepted. Now, as I say, when I gotinto the room we certainly had a robustness to thediscussion, but it was orderly and it was constructiveand, as was apparent over the course of the next couple ofhours, we achieved an agreed position.

Can I invite you to turn to paragraph 31 and following, thediscussion about the new business model. 31 through toabout 35, I think it is?---Yes.

You were taken to a number of publications annexed to yourstatement which indicate the new business model with thesefour pathways that you set out in paragraph 33?---Yes.

The publications indicate that they were introduced with somechanges in names, but essentially introduced inApril 2008, came into effect in October lastyear?---That's correct.

In paragraph 33 you describe those four pathways and I thinkyou said that the choice of pathways was one made bystakeholders; am I right in recalling that?---That'sright. In an iterative discussion with our relationshipmanagers to help them understand the art of the possible,but the whole intent of the business model is to empowerand inform and enable stakeholders, but to clearly alsoput the shift of the responsibility for the demand and therequirements and the needs for standards onto theshoulders of the stakeholder, instead of having peoplejust throw ideas over the fence and say, "Hey, standards,you should do this." We require far more work in theinitial stages by the relevant community of interest.

You also said with new projects Standards Australia scrutinisesthose to see where they fit within yourobjectives?---That's correct. We analyse them, I suppose,

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for some fundamental requirements which is, for example,we have been instructed by government that every singleAustralian standard developed by Standards Australia mustbe able to demonstrate and defend and withstand thescrutiny, right up to an independent appeal, that it is inthe net benefit of Australia.

You annex in volume 67 the memorandum of understanding with theCommonwealth which sets out the general principlesgoverning the relationship between Standards Australia andthe Commonwealth?---Yes.

And there are a number of general principles in that MOU thatStandards Australia must have regard to or will haveregard to by agreement, a number of principles indeveloping new or revised standards?---Yes.

Including the net benefit to the community, contestable andrigorous testing. I will wait until you turn itup?---I have it, but if you have the page of the MOU or aclause within the MOU, a paragraph?

Article 3?---Thank you.I will find you a WIT number so everyone else can follow where

we are. It is tab 16. The WIT number is(WIT.7501.001.0082) is the commencement of the attachmentand I'm looking at article 3, which is document number0086. Do you have article 3 open, Mr Tucker?---I do.

So that sets out the various general principles StandardsAustralia will have regard to?---Yes.

And I mentioned the net benefit to the Australiancommunity?---Yes.

The assessment process being contestable and rigorous?---Yes.The avoidance of unnecessary cross-references?---Yes.The writing and terms that don't inhibit competition?---Yes.

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And clearly identifiable outcomes?---Yes.The reference to standards being written in terms that don't

inhibit competition, you have made the point yesterday andthis morning again about the fact that other standardsdevelopers exist and are emerging?---If I may, that is notwhat I believe that point is about.

This is a different point, is it?---Yes. This is suggestingthat a standard should not be written to inhibitcompetition in the market. For example, if a standardfavoured plastic pipes over concrete pipes, that is theintent I believe at that point. It is not to do withcompetition in standards development. It is about theimpacts on the market in the application of any particularstandard.

Okay. Coming to 5.2, Standards Australia will whereverpossible and subject to article 3 give priority torequests for work the Commonwealth considers necessary forthe successful attainment of public and national interestobjectives?---That's right.

Then 5.10 is the goal of improving efficiency and timeliness ofstandards development in various ways?---Yes.

You said in your evidence yesterday that Standards Australiawas only taking on development projects you could deliverin a timely manner?---Correct.

How does that fit with the MOU requirement to give priority towork requested by the Commonwealth?---As I describedyesterday - if you go back, you mentioned the date ofApril 2008. At April 2008 we had 1400 projects running.By 1 October we had reduced that to 400 active. That's adynamic process, if you like, that as one goes out thedoor and there is capacity, we then have another sort of

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400 or so. They are approximate numbers and there aremore exacting numbers, but it is in that order. So wehave those 800 projects, if you like, that were, if I canuse the expression, grandfathered in and regarded ashaving been able to demonstrate the requirements we havejust talked about, but in particular sufficient netbenefit and order and focus and priority to proceed. So,there was a very rigorous prioritisation process, therewere prioritisation criteria and there was discussion withrelevant committees and stakeholders and contributors inrelation to each of those. So, for example, if the energyregulators came back and said, "Listen, we think these arethe right 20 projects, not these ones," then we were veryhappy in effect to horse trade because our aim was to endup with the right set of prioritised projects. And thenfor all new projects coming through, as I have saidbefore, they in effect come through under the new businessmodel and must have a proposal, demonstrate sufficientstakeholder support and a commitment to achieve aconsensus outcome, contain a net benefit case and have adiscussion about pathways and choices, so we are in thistransitional period between the old and the new. As wespeak, for the financial year that commenced on 1 July,because we have reduced our staff numbers because we couldnot afford to retain those staff without eating into ourcapital base, so in accordance with the undertakings ofthe board to maintain the organisation on a sustainablebasis in perpetuity, we have reduced our numbers.Accordingly our current capacity for active projects isreduced to 350, so we have committed to complete those 350items in the current year. This includes many standards.

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Almost all of them would have government participation andcontribution.

Just come back to the pathways then, so I understand it. TheStandards Australia-driven pathway is, as the nameimplies, driven and resourced by StandardsAustralia?---That's correct. That was to be, I suppose, areserve province for matters of very high net publicinterest and on affordable basis for us to step up andmake sure that we could respond on critical issues.

Okay. And historically that Standards Australia's drivenprocess or managed pathway were funded and resourced atStandards Australia's cost?---So the real costs were metby us with in kind support from contributors, yes.

That cost was recouped through the sale of the standards, inpart?---Well, yes, the rights are captured and there is aprocess and a return and, as we have described,historically that used to all come to Standards Australiaand under the modern approach we receive a royalty but, ifyou like, the 15 plus five year arrangement with SAIGlobal means we forward sold the revenues from the forwardprojected sales of revenues and then we live on this sortof annuity basis or endowment basis.

That pathway you have stated in annual reports and elsewherewill no longer be available for projects as of June ofnext year?---I have made a range of announcements, but,yes, that is one of them. As I said yesterday, I havemade a subsequent announcement of some transitionalfunding and of a grant scheme that will be less absoluteand abrupt. So in fact we will continue to fund, to makea contribution towards standards development, but in adifferent manner to the Standards Australia-driven

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pathway.Through the grants?---Through grant schemes and through

transitional support, which I'm happy to explain.So the decision to cease the Standards Australia-driven

projects was taken when?---The decision was takenat - I would have to check the date - but one of the lastdays in May, a late May meeting of the board, and wascommunicated to our council members in a communique dated23 June 2009.

The reason I'm asking this is that the standard 3959 has todate gone under the Standards Australia-drivenpathway?---Correct.

And in May of this year you wrote to various ministers,Ms Richards took you to the letter, seeking what youdescribed as immediate and urgent up-front funding forrevision of the standard, amongst other things?---Yes,I checked the wording. The intent, as I said, was toindicate that there was a real cost to these standards andhowever they were progressed and by whatever standardsdeveloper, because that is what our model implies, we wereseeking to in effect - this was almost an advance letterof what was later communicated to all our council membersin June seeking to provide the reality of the financialdifficulties facing Standards Australia, exacerbated bythe global financial crisis.

So the letter, let's get it up, is (WIT.7501.005.0180). That'sthe letter to Mr Shorten, but essentially you wrote to anumber of ministers and others in similar terms or thesame terms?---That is right.

It is JDT 97, volume 71, exhibit 97, tab 1. I don't know if weare working off the same tabs, but that's where I'm

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finding it. So witness statement 7501, you have it there.This is the letter to Mr Shorten, but it is in identicalterms to others. Just before I go to the substance of theletter, you made the point yesterday in evidence there wassome confusion about the intention of the letters and yousaid the intention of that is recognising this is acompetitive and contestable market, not to be taken assaying, "We think you should give us a million bucks." DoI understand your evidence yesterday to be the effect thatthis letter was not intended to convey the impression thatStandards Australia was the only standards provider. Yousaid something about the intention to recognise thecompetitive market that I didn't really followthere?---I'm agreeing with how you have just describedthat's what I was seeking to say yesterday, and that wasmy intent.

So your intent in writing the letter, tell me if I havecorrectly paraphrased it, was not to say, "You've got tofund us because we're the only one out there"?---Correct.

Can I suggest to you that the letter does very much convey thatimpression? Would you accept that?---Perhaps a differentresponse to that would be to say I met with SenatorShorten and my opening discussion with him was to pointout that was our intent. He fully accepted that point.We had an extremely constructive and positive discussion.If it is relevant, I can indicate to you what he said, butotherwise I will treat that as a matter between us.

Just stay with the substance of the letter at the momentbecause you also sent it to Minister Carr and Mr Donaldsonand others, didn't you?---Yes.

This letter is capable, is it not, of giving the impression

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that it is crucial that the work of Standards Australia befunded to work on the various projects, including revisionof 3959?---That's right.

You make those points. In the first paragraph you say it iscritical you bring to ministers' attention the starkreality is for Standards Australia to meet the need forbushfire-related standards. Resourcing is an issue thatneeds to be met by, amongst others, government; in thefirst paragraph?---Yes.

In the third paragraph you say your capacity to fund - this isthe last sentence - Standards Australia-driven projects isimmediately and severely curtailed pending the recovery ofthe financial position?---Yes.

I will come back to that. In the fourth paragraph you note thefast tracking of the standard to assist Victoria?---Yes.

Fast tracking is a reference, I presume, to trying to get theinterim standard in place and moving quickly to theballot?---Yes, and the fact that the initial timeframes,as have been recorded here, was otherwise to be broughtforward for November 2009, so there was a collective fasttracking by the ABCB and by the processes of the StandardsAustralia to bring that significantly forward.

So just going through that chronology in short space, theregulatory impact statement was November 2008?---Yes.

The final ballot closed on 3 March. You have talked about thesteps that you took in February?---Yes.

The resolution by the standards development committee topublish was 5 March?---Yes.

The board, the ABCB, adopted it the same day?---Yes.And then the Victorian regulation adopting the standard went

through on 11 March?---That's right.

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On the first paragraph on the second page you highlight theneed for urgent work in a number of areas to improve thesystems and standards in the future, ahead of theanticipated report of the Commission?---Yes.

Which is of course due next year. Then you identify fourprojects that you say relate to the mitigation of bushfirerisks, including in the first dot point the revision of3959?---Yes.

You say that the ABCB will need a fully revised standard if itis to enforce building construction standards. Now, theboard doesn't enforce building constructions standards,does it, so I just ask you what you mean by that?---Well,it goes on to say through the Building Code of Australia,which is - there is discussion about that transforminginto a national construction code.

Is that a reference to referencing the standard in thecode?---That's right, so it is talking about it being partof the regulatory fabric called up through and enforcedthrough the building code, and of course it is state andfederal governments that do the enforcing. I'm agreeingwith your point there.

Then you mention the handbook that would be useful and the needto develop new standards?---Yes.

On sprinklers, sprays and refuges?---Yes.You make the point that that's not a revision of 3959, but

complementary, if you like, for sprinklers?---That'sright; the view there that we should be more discrete inour work and that a separate standard would be anappropriate way rather than trying to incorporate it into3959.

You go on to say in the second last paragraph on that page that

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in October 2008 you introduced the new businessmodel?---Yes.

And make the note that any new proposal will in effect bescrutinised for the need, whether it fills a niche andwill depend on the up-front commitment ofresources?---Correct. It also states that the modelemphasises responsibility for identification, needssolution and solution provider rests on the shoulders ofthe relevant community of interest. That is, they takethe decision about what they want, what they need and whothey choose. So, back to your earlier comment, I thinkthis letter quite clearly in my mind, as I wrote it, puton the table a choice of solution provider rests with thecommunity of interest and that very specifically includesgovernment in this context, so it was in no way seeking totell governments who they should use; it was trying tohighlight to them that they had the choice and if theychose to work with us there were going to be costs andthat that was consistent with the recommendations of theProductivity Commission 2006 that said the responsibilityfor funding of standards intended for regulation is forregulators on a case-by-case basis.

So Standards Australia was asking for up-front commitment offunding for a period of five years to ensure resourcingand continuity of the projects you have identified?---Canyou show me where it says that?

The top of paragraph 3?---I'm sorry, I'm going off the screenhere because I haven't quite found it in my documents.

Sorry. Page 3, the first paragraph?---I think the way to lookat that was to, and I will put it in the context I havejust described, having been clear that the choice of

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provider was with government, that our estimate of thosework items, which clearly could not be agreed until postthe Royal Commission, would be of that order and that wasour estimate for what it would cost to work with us withinour collaborative framework.

In this letter you were asking for funding for StandardsAustralia to pursue projects of extremely high netbenefit?---No, I was suggesting that governments wouldneed to make a provision if they wished to be in aposition to be able to fund this and work with us.

My question is about pathways. Were you asking the governmentin this letter to provide funding for a project that hadbeen and was proposed to be managed under the StandardsAustralia-driven pathway at a time when that pathway wasbeing phased out?---I think the key point here - andI have had this discussion certainly with David Michel,who is the project manager of FP20; I don't believe I havehad this conversation with Mr Eadie as the chair of thatcommittee - that on a projects based approach we do notintend to see a committee just roll along forever doingwhatever it likes without seeking further projects andapprovals. So, at the point where we released 2009, andI can tell you I suppose in my mind where I thought wewould draw the line, but the point was under ourmethodologies there needs to be a point where we sayproject complete, now we need a fresh proposal through thefront door under the evaluation system to say what isproposed, when is it going to be completed, to bring inplace that orderly project management approach we aretalking about. So, to answer your question, there is apoint where work on AS3959-2009 has a line drawn under it

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and that is completed. Further work to be prioritised,ordered, resourced and project managed to ensure certaintyand timely completion will need to be scoped and definedand progressed and approved in accordance with ourinternal project management methodology and in accordancewith that there will need to be a fresh discussion aboutwhat is the scope of this and what are the resources andhow is that going to be resourced and that has regard tothe frameworks available and to the reality that StandardsAustralia has defined resources and needs to - we can'tfund everything for everybody, no matter how much we wouldlike to.

So when you say on page 1, the paragraph I took you to, "Ourcapacity to fund Standards Australia-driven projects isimmediately and severely curtailed" and you mention 3959which is a Standards Australia-driven project and seekfunding for things including that, is the proposal to goforward with revision of 3959 under StandardsAustralia-driven projects or do you use some otherapproach?---It would be - the essence of that - I don'tknow whether 3959 is one of those 350 active projects inthe current year, so I can't tell you exactly where thatis in our system as we speak. If we just broaden it alittle bit, there has to be a point in relation to, forexample, those list of items and others that might comefrom the Royal Commission where they are projectised,submitted, get into the queue and are resourced. That isnecessary if we are going to have greater certainty anddelivery. The struggle we are having in this conversationis exactly at what point the work of 3959 has a line drawnunder it, at what point that has a fresh proposal and just

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how that would be managed. Whilst I can't give you thatclarity here this morning, I can tell you that the spiritof what we have sought to do is to jump in and assistVictoria unreservedly in the aftermath of the bushfire.That is evidenced through the fast tracking of this work,it is evidenced by the fact we are getting on withthe rewrite of HB36, it is evidenced by the support wegave in roadshows in Victoria and in educating and helpingthe Victorian Building Commission, to which they have beenprofusely grateful to us, for helping them with supportmaterials and doing "train the trainer" programs to allowpractical implementation of the standard in Victoria. Thepoint that I have been trying to manage as CEO is to saythat the estimates that have been put to me is that theRoyal Commission costs in total for this organisation willbe in the order of some hundreds of thousands of dollars.We are very happy and without question to have jumped inand helped Victoria in the aftermath without going throughbureaucratic slow hurdles. But there comes a point wherewe must return to an orderly project managed and fundedapproach for what is likely to be a very significantamount of work. My purpose in writing this letter was toavoid the situation which I have found myself in far toooften in the past, and I will give the example of coronersin particular, and I may have said this yesterday, whereI get reports saying, "Standards Australia, you mustdevelop a standard on X or Y or Z" and we are sittingthere saying the proper recommendation should be thefurniture industry or the vehicle industry or thoseresponsible for regulating the fire industry need to stepup and ensure an appropriate framework of standards and

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the associated costs. We are not government, we don'thave consolidated revenue, we do not have, as I call it,the magic pudding. We have defined resources and we mustallocate them in a far more rational way in the future ifwe are to avoid accusations of disorder and of promisingmore than we can deliver.

In light of what you just said, do you have a view now or is itsomething that has to be decided as to which pathway wouldbe appropriate for Standards Australia's development of3959 in the future?---The matters are under discussion andthe very points you are taking me to I am aware of are ofconcern to the Commonwealth. We have the MOU. We arehaving discussions about this very point. Later this weekin this city I have a meeting with very seniorrepresentatives of the minister to discuss this veryissue. The reassurance I will be seeking to give thoserepresentatives this week is that, as per this statementin item 30, still some 95 per cent of our resources aregoing into standards development, we are not walking awayfrom that. If the Commonwealth wishes to reserve theright to identify which priorities will be developed,I need to confirm this with my board, but it is myintention to offer that to the Commonwealth if thatresolves their concern. But this will need to be donewith transparency so that all other stakeholdersrecognise - for example, we are committed to 350 projectsas we speak. If the Commonwealth says, "You will do thisbecause this is our priority," and we say "Fine," thequestion is which of those 350 drops off because thegovernment is asserting its place in the queue. That is adiscussion we have to have. If the Commonwealth is

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prepared to do that in a transparent way and be on therecord as saying, "We are the government and we arereserving a special right outside of the prioritisationprocesses to assert that position," then in effect we cando it. We are spending most of our money on standardsdevelopment; it is simply a question of what is the bestplace and the best leverage to fund our entire range ofactivities, so it is a matter under discussion.

You were asked a question by Ms Richards yesterday about howcan Standards Australia see the work done in a more timelymanner. You made a comment in your answer about wishingto work with community interests and the ABCB. Can I askwhat you meant by that?---I'm sorry, do you mind restatingthe question?

The question that counsel assisting asked you was how canStandards Australia see the work done in a more timelymanner. You gave a lengthy answer, but included in youranswer was a comment about wishing to work with communityinterests and the ABCB to work out the scope of the work,the way forward and things of that nature. Can I ask youwhat you contemplate being - when you say that you wantedto work with the board, what is the work that you arecontemplating in order to achieve timeliness of revisionof the standard?---I am struggling a little bit to makethat connection with what I said yesterday, but it is afact that so much of our historic and significant workrelates to building and construction and such is thetension that we are touching on about the funding of itthat we believe and we have foreshadowed to the ABCB ourdesire to have a real dialogue about what is the nature ofthe work, what are our available resources, how are we

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going to move forward in an orderly, planned and clearmanner to achieve this work. Under the model, under thenew business model and under our undertakings to theCommonwealth arising from the Productivity Commission,there is in effect a five year requirement for revision.So that, if a standard gets to five years old and it hasnot been reviewed and the parties have been given duenotice of the need to step up, enter the new businessmodel and make their proposals, do they wish to reconfirmit or retire it or refresh it or start again or whateverthat might be, if that hasn't happened, then theexpectation is that the standard will be made obsolete andin this manner it is the equivalent of a sunset provisionin legislation to make sure that the catalogue ofAustralian standards remains refreshed and up-to-date.So, again in the spirit of this new business model, wehave to be very clear that the responsibility forregulated standards such as those called up in thebuilding space and relied upon in the building code, aheavy responsibility will fall to the ABCB to ensure thatit has a clear position on the refreshment and review oneach of those standards as they approach their requiredreview date.

Can I go back to a question that Commissioner McLeod askedabout the committee process. Is there a way to achieveefficiencies in the technical committee process in havingthese revisions sped up, in your view?---Yes, and I madethe comment yesterday that we have undertaken someconsultations and review using external consultants andthrough what we call our living laboratory to explore whatcan be done to speed up the timely production and the

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efficiency of standards, and we have identified some 200initiatives and that's from not having gone too widelybeyond our internal staff. We have, if you like,prioritised the top five, 10, 15 of those actions and aregetting on with either implementing them or piloting themso as to implement continuous improvement to achievefaster take-up.

Finally, Commissioner Pascoe asked you a question this morningabout what is to stop the board developing its ownstandard on, say, bunkers. Do I understand your answer tobe to this effect: that short of resolving the question ofintellectual property in the standard owned by StandardsAustralia and its partner and the question of whetherthere's cross-referencing or adoption of chunks of thatsection in a new standard, effectively there is nothing tostop that happening?---Correct. It is my understandingthat there is no bunker standard, so I think we aretalking about a greenfield site, in effect. Thegovernment within that MOU has always both in writing andin practice reserved its right to develop its ownstandard. So I just reiterate it is not a novel issue forthe ABCB to consider solutions other than StandardsAustralia and indeed its provision for reference documentsabsolutely embraces a contestable framework for that.Indeed, it was one of the source reference documents weused when we developed our accreditation criteria becauseI thought it was an excellent example of a framework forthe contestable and competitive development of referencedocuments under the BCA. They are well positioned to makechoices from a wide variety of paths for their documents.

Thank you, Mr Tucker.

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CHAIRMAN: Any further questioners?<RE-EXAMINED BY MS RICHARDS:Mr Tucker, I think you have your letter to Mr Shorten open in

front of you or certainly on the screen?---It is on thescreen. If you could point me to the - - -

Could we have a look at page 2 of that letter, please. At thetop of page 2 there are four projects that you identify.The last two projects, bushfire sprinklers and sprayers,are new projects and I understand that for those to beundertaken by Standards Australia they will have to gothrough the new business model that you have described tous?---That's my understanding.

AS3959-2009 was published this year with a caveat in relationto the major issue of disagreement that the committeewould be asked to review the standard including flame zoneconstruction in light of the relevant outcomes of thisRoyal Commission?---Yes.

So publication of the standard always envisaged that futurework would be required?---Correct.

You spoke in answer to questions from Ms McLeod about a need atsome point to draw a line under the AS3959 project andthen for any future work to be considered a newproject?---Yes.

Has that line been drawn?---No.So can we take it that revision of AS3959-2009 as contemplated

in the preface to the 2009 edition will continue to bedone on the Standards Australia-driven pathway?---Yes.

Thank you. May Mr Tucker be excused?CHAIRMAN: Yes. Thank you, Mr Tucker. You are excused.<(THE WITNESS WITHDREW)MS RICHARDS: That may be a good point for the mid-morning

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break because there are a large number of folders to berearranged before the next witness, Mr Eadie.

CHAIRMAN: Yes. We will take a short break.(Short adjournment.)

MS RICHARDS: I call Barry Eadie.<BARRY FRANCIS EADIE, sworn and examined:MS RICHARDS: Good morning, Mr Eadie?---Good morning.Could you please state your full name and your business address

for the Commission?---Barry Francis Eadie. My businessaddress is 50 Central Avenue, Como West, in the State ofNew South Wales.

With the assistance of the lawyers for Standards Australia,have you prepared a witness statement for thisCommission?---I have.

Do you have a copy of your witness statement there?---I do.Together with some 87 exhibits?---Correct.Mr Eadie, have you had a chance to review your statement

recently?---I have.Is there anything that you wish to correct?---No.Is your statement true and correct?---It is.I tender that. The document number for the statement itself is

(WIT.7502.001.0001).#EXHIBIT 172 - Witness statement of Barry Francis Eadie

(WIT.7502.001.0001).MS RICHARDS: Mr Eadie, you are here because since 18 September

2001 you have been the chairperson of technical committeeFP20, the Standards Australia technical committee that hasdeveloped AS3959?---That's correct.

How did you come to be chairperson of that committee?---I wasapproached by Standards Australia to chair that committeefollowing the retirement of the previous chairman.

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It is a voluntary position?---It is.You also work and have worked since 2005 as a consultant

through your own company, Barry Eadie Consulting?---That'scorrect.

In what area do you consult?---Mainly in fire protection andbushfire and risk assessment and building regulation.

Between 1999 and 2005 you were the director technical servicesof Holmes Fire Safety?---Yes.

What was your role there?---My role was similar there in doingassessments and review of fire protection in both bushfireand dangerous goods and building regulation.

In that role you became familiar with both the 1991 and 1999editions of AS3959?---Yes.

Between 1963 and 1999 you were employed by the New South WalesFire Brigade in various capacities?---Yes.

The New South Wales Fire Brigade, just to be clear, isdifferent from the New South Wales Rural FireService?---Yes, that's right.

Can you explain the difference for us?---The New South WalesFire Brigade is predominantly for residential areas andthe Rural Fire Service predominantly look after thebushfire areas of the state.

Your last role at the New South Wales Fire Brigade was as chiefsuperintendent and manager of the safety division?---Yes.

Mr Eadie, you set out in paragraph 8 of your statement yourother involvement in technical committees of StandardsAustralia. You are also the chair of FP23, which isresponsible for tunnel fire safety?---Correct.

And also FP5, although that's now inactive?---Yes.And you are convenor of FP4, subcommittee 2, which is

responsible for bushfire sprinklers and

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sprayers?---Correct.You are also a member of some other groups, including the fire

standards coordination group that Mr Tucker referred to inhis evidence?---Yes.

You have attached to your witness statement as attachmentBFE 7, and I don't want to go to this, a document thatsets out in some detail the role of the committeeleadership, that is you as chairperson and the projectmanager?---Yes.

And the project manager for AS3959 throughout your tenure aschairperson has been David Michel?---That's correct.

In your witness statement at paragraphs 12 through to 19 youset out in general terms the process that's followed bythe technical committee and you refer to thestandardisation guide that I went to with Mr Tuckeryesterday, and I don't propose to repeat that exercisewith you. But, to summarise, the drafting of standardsyou say in paragraph 14 of your statement is oftenundertaken by subcommittees and working groups?---That'scorrect.

And that's subject to the oversight of the parentcommittee?---Yes.

There is, in the development of any standard, a public commentprocess?---Correct.

Can you outline how that works?---When the standard reaches apoint where the committee feel it's getting closer, if notcompleted, it is put out for public comment so that we getthe comment of all interested parties throughout thenation. Then those comments are reviewed by the fullcommittee prior to the document going out for ballotwithin the committee.

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Depending on the nature of the public comments received, theremay be a need for revision of the document?---That'scorrect. If there is an obvious error or flaw in thedocument as a result of the public comment process, it maybe necessary to revise the document and resubmit it forpublic comment.

Once the public comment process has been completed and thecommittee is satisfied that it has taken into account thepublic comments received, the committee then conducts aformal ballot process?---Correct.

And where a member of the committee casts a negative voteagainst publication of the standard in the formcirculated, that committee member is required to indicatereasons for the negative vote?---That's right.

You set out in paragraph 17 of your statement what is requiredto achieve consensus?---Yes.

We discussed that with Mr Tucker. Can you explain in yourexperience how a failure to achieve consensus isresolved?---Initially the negative vote is considered bygenerally the project manager and the chairperson, andthen they contact the person that's issued the negativevote and try and resolve it with them. If that'sunsuccessful, and we have both situations in this case,where we were able to resolve the negative vote with theFPAA but with AFAC and CSIRO we were unable and then thatwas referred on to the standards development committee.

What approach do you take as chairperson of a number oftechnical committees to testing whether consensus can beachieved?---You get the feel for people's positions rightthrough the whole process, and I suppose that's one of theadvantages of this consultation process, that people's

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views often change as new information or research andtechnology comes along and we try to encourage people tolook at that. We know where their allegiances lie, if youlike, and where they are very strong on particular issuesand we work a way to try to resolve those.

Is it your approach as chairperson to keep people talkingrather than push things to a vote?---There is a limit tohow long you can let them talk, of course. An examplelike flame temperature went for two days and wasn'tresolved. It was resolved through another avenue. ButI considered that as a very important issue for the wholeof the committee to get a full understanding, whereasother issues you might well restrict that discussion downto just five or 10 minutes. Quite often before we startthe meetings we will go through the agenda and highlightissues that are most important and we will allocate moretime to those than some of the others.

Typically the meetings of FP20 occur over a day or often twodays, is that right?---Generally two days.

Because it is a national committee, people come from acrossAustralia to participate?---That's right.

How do you as chairperson gauge when a draft standard is ripeto be put to ballot?---You get that from the discussionaround the table and the people are showing confidence inthe direction that the standard is going in. You neverreach the point, I don't think, where everybody is in fullagreement, but you reach a point where you think, based onthe information you have at the time and the knowledge youhave and that there is no obvious errors and flaws in thedocument, you can put it out, because, as Mr Tucker said,they are living documents and tomorrow it will progress

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some more, we hope.You mention in paragraph 19 of your statement the need for

regular review of standards and state that standards since2006 are reviewed at not more than five yearlyintervals?---That's correct.

Just to clarify, that means the review is supposed to becompleted within five years, not started after fiveyears?---That's right.

If I can move now to the next topic, the scope of AS3959. Youset out at paragraphs 20 and 21 of your statement somematters that you say are not covered by AS3959. The scopeof a standard is determined, is it not, by the terms ofreference of the committee?---Yes.

And, where there is one, the project proposal for developmentof the standard?---That's correct.

Was there ever a project proposal for the review of the 1999edition that FP20 has undertaken?---Not that I'm aware of.

So that leaves us with the terms of reference of the committeeand you set those out in your statement at paragraphs 41and 42?---Correct.

Looking at paragraph 41, the terms of reference at the time youassumed the chair were: "Development of a standardmethodology to assist the regulatory authorities in thedefinition of bushfire-prone areas and to assess thelikely severity of a bushfire attack, together withdevelopment of construction standards for the performanceof a building with respect to the anticipated level ofattack." So there are three discrete areas of activityfor the committee?---Yes.

In February 2003 you say in paragraph 42 the terms of referencewere revised to read: "Development of a standard

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methodology to assist the communities' awareness ofbushfire attack with buildings and the regulatoryauthorities in the definition of bushfire-prone areas andto assess the likely severity of a bushfire attack,together with the development of design and constructionstandards for the performance of a building with respectto the anticipated level of attack." Specifically includedis assessment methodology and construction requirements.Specifically excluded is planning, siting, subdivision andlandscaping?---Correct.

If we can turn back to paragraph 21 of your statement, you lista number of matters that you say are not included in thescope of AS3959. Can I just ask you about special firebarriers. What do you mean there?---That's basicallyscreening; walls, something of that nature.

That might be taken into account in the design of a building,might it not?---Yes.

In fact shielding effects of barriers are taken into account inassessing the level of construction?---They are in the2009 edition, yes.

So special fire barriers to an extent may come within the workof the committee?---Yes.

Active systems, sprinklers and sprayers, and you have told usthat sprinklers and sprayers are the work of anothercommittee. Looking at (e), while designatingbushfire-prone areas is of course not the work of thetechnical committee, it does do work to assist theauthorities to identify bushfire-prone areas, does itnot?---Yes, it does.

In fact, in the 1999 edition there is a quite helpfulappendix that sets out the approaches taken in various

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jurisdictions?---Exactly.Defendable space and minimum separation, they are planning

issues. They don't fall within the work of thecommittee?---That's correct.

(h), providing safe egress for occupants of a building in abushfire-prone area, you say requires consideration ofmatters relating to planning and the location ofbuildings. It may also include matters relating to thedesign of a building, do you agree?---It could do, yes.

In that sense the standard might specify a minimum number ofexits and ways to get out of those exits?---It could do.

If I can take you now to AS3959, you outline firstly inparagraph 23 the interests who were represented on thecommittee when AS3959, the 1991 edition, was developed andthere were additional interests who participated. I knowyou weren't on the committee at that time, but can youexplain the difference between representation on thecommittee and participation in its development?---Sorry.Between the representation?

You have listed two categories of interests. In paragraph 23you list interests who were represented?---Yes.

And in 24 there are additional interests which participated.What's the distinction between the two?---The distinctionis that for interested parties or bodies they are peopleor organisations that don't particularly want to beinvolved in the whole process but may have a particularinterest in one aspect of it. They are organisations thatyou look to when you are setting up working groups onspecific issues where they may have particular expertisein that area. At that time, standards allowed - where theAustralian Assembly of Fire Authorities, which is now

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AFAC, was represented in 1991, there were still quite anumber of individual fire services represented. TheCountry Fire Service, the Country Fire Authority ofVictoria were there, as well as AFAC.

And also the Board of Fire Commissioners in New SouthWales?---That's right. So there was a real mix of anoverall body, a national body, if you like, being theassembly, and individual state and territoryrepresentation. Therefore, the interested partiessupported those organisations with, as I say, expertiseand knowledge and experience that they might have.

Looking at the make-up of the committee back in 1991, as youhave mentioned, both the precursor to AFAC and someindividual fire authorities?---Correct.

There is quite a diverse range of governmentdepartments?---Yes.

Ranging from the Department of Defence, National Parks andWildlife Service, through to the Minister of Educationhere in Victoria and then a sprinkling of industryinterests?---Correct.

AS3959-1991, you give an outline of it in paragraphs 25 throughto 29. Just looking at paragraph 27, can you outline forus, please, what were the principal features of that firstedition of the standard?---The difference from the 1991was it was a very basic standard where it simply said ifyou were within a certain distance of vegetation and therewas a particular slope, you built to a level ofconstruction, and it gave you those construction elementsand they were just the construction requirements that theycovered. So it was a very, very basic, I suppose,fundamental document to start with.

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So there was no differentiation between different levels ofrisk?---No, not at all.

And there were construction requirements prescribed for each ofthe matters listed in paragraph (b) there?---Yes.

Moving to the 1999 edition, you have set out in paragraph 31the interests that were represented on thecommittee?---Correct.

Looking at that, there seems to have been a move, a shift inthe representation perhaps away from the preponderance ofgovernment interests that were on the earlier version ofthe committee, with more representation from variousindustry bodies?---On a national basis. So the industrybodies and the fire services, the standards took the viewof looking to national bodies to make representationinstead of individual organisations.

Although we still see Country Fire Service from SouthAustralia, New South Wales Rural Fire Service wererepresented on the committee at that time?---Yes.

AS3959, you say that its development commenced in aboutOctober 1994 at the Australian Building Codes Board'srequest?---Correct.

Can you outline, please, the features of AS3959-1999 andexplain to us how it differed from the 1991 edition?---Allright. The issues were that they still considered therisk component based on vegetation type and slope anddistance from the vegetation, and they initially had twolevels of construction because they started to look atdifferent types of vegetation and the impact of thosevegetations. There were two amendments to the 1999edition. One was in relation to fire retardant treatedtimber that was more clearly defined and included some of

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the natural timbers that would satisfy that test criteria.The other one was the inclusion of construction at thehigher level which then gave them four levels ofconstruction, being low where there was no requirement,and they had a medium, high and extreme, so the secondedition or the amendment captured that higher level ofconstruction and it gave construction elements for thosevarious levels.

All right. Major differences between the two editions were the1991 edition only addressed ember attack?---Predominantly,yes. It was based on ember attack.

And the 1999 edition moved to addressing ember attack, flamecontact and radiant heat?---Correct.

As you have mentioned, the 1999 edition introduced a method forassessing the level of risk or exposure of a particularsite and we have low, medium, high and extreme?---Correct.

And initially there were construction solutions prescribed formedium and high?---Yes.

And an amendment later introduced construction solutions forthe extreme zone?---That's correct.

I won't take you to this, but just to alert people to itsexistence, there is a broad comparison of the twostandards and also the 2009 edition in exhibit BFE 11 toyour statement?---There is.

As I understand it, that was prepared by you andMr Michel?---That's correct.

Moving to the 2009 edition, if we look again at the make-up ofthe committee as you have set out in paragraph 45,representation on that committee has evolved again, has itnot, from the earlier constitution of the committee, and amajor difference is that the fire agencies are now

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represented solely through AFAC and notseparately?---Correct.

And there is a wider range of industry interests representedthan had previously been the case?---That's right.

COMMISSIONER McLEOD: How is representationdetermined?---Representation is determined by interestedorganisations or bodies approaching Standards to berepresented on a particular standard. Then Standards lookat the balance on the committee to see how that may impacton the balance that you've got within the committeeitself, and also the importance of the issue. If I cangive a brief example. At one stage when we put out adraft for public comment it came back and we found thatthere was an absolute flaw in the glazing requirements andthat was raised by the public comment process, but therewas no representation on the committee of window orglazing people, so we then approached the national windowindustry and they put a representative on it. But that'swhere we approached them. There was nothing to stop themapproaching us, and that's happened in recent times withthe insurance industry and others.

MS RICHARDS: Another example of where the committee changedits own constitution was in 2003 when there was a decisiontaken to invite Mr England of Warringtonfire onto thecommittee to represent testing interests?---That's right.

So there are various ways that the constitution of thecommittee can change. The committee might decide toexpand its membership; some organisations may loseinterest and stop sending a representative?---Thathappens, yes.

Or Standards Australia at the production management group level

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may decide that a rebalancing is required?---And theymight review the whole representation.

And routinely about once a year the committee is required toreview its constitution and assure itself that there is abalance of interests?---Yes.

In relation to the 2009 edition I would like to do two separatethings with you. The first is to look at what the 2009edition is, and I would like you to explain it in somedetail to us, and then I would like to go back to look atthe process of developing it and reviewing the 1999edition. I will separate those two exercises. Atparagraph 135 of your statement, if we can move ahead tothat, you outline the major differences between the 1999and the 2009 edition s?---Correct.

Could you explain those in a little bit more detail for us,please?---The 1999 edition was a fairly empirical sort ofa document where you simply looked at the vegetation, theslope and the distance and came up with a level ofconstruction requirement. With the development for 2009,and because of the research that was being doneparticularly around Australia, there were organisationsand fire services that were developing models andcalculation methods of determining the actualimplications, the impact of bushfire in relation toradiant heat. Prior to the 2009 edition, it only talkedabout, the 1999 edition only talked about levels ofconstruction. It never had any numbers to measureagainst. It just said low, medium or high or extreme.Technology was coming along and research was coming alongto say, "We can actually measure some of these thingsnow." So we were able to develop a scientific base, if you

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like, based on the vegetation types and the slopes and thedistance from the vegetation, and then FDI came into it,to develop formulas that we could actually more closelyand more clearly calculate the radiant heat impact on aparticular building based on a specific location. So itwas decided that because the ABCB, and there has beenreference earlier, required a deemed-to-satisfy approach,that we would develop tables that would give thatinformation to people; they could just open it and if theysatisfied that, they could move on, or if you wished youcould take a more scientific approach and be very sitespecific for your building. That's where the twomethodologies came into play. This took a long time todevelop this because a number of players got involved andthe fire services in particular were at the forefront ofdeveloping these calculations. Then we were able tomeasure the actual impact of a bushfire on a building. Bydoing that, we could then determine what elements ofconstruction could withstand that particular level of fireor radiant heat, as the case may be, whereas previously,as I said, it was fairly empirical. They said, "If youare this far away, this material should be able towithstand it." That was highlighted again in some of thepublic comment review that when we actually put numbers onit, and I use the example of glazing again, the particularglazing that was in the standard was not capable ofwithstanding that level, so we then had to raise therequirement for the glazing element to achieve that.

I think in the answer you just gave you are referring to twoparticular developments that we see in the 2009 edition.One is the method for assessing the bushfire attack level

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of a site, and there are the two alternativemethods?---Correct.

I will take you to the simplified version in a little while.The other is the referencing of test methods that simulatebushfire attack which were developed during the life ofthe review?---Yes.

And are used as a means of identifying materials that canwithstand a certain level of radiant heat over a certainamount of time?---Correct.

The new standard of course also has six levels of bushfireattack rather than the previous four?---Correct.

Is there a rough correspondence between low, medium, high andextreme and the six new levels?---It is very broad. Youcannot draw a clear line of distinction between the levelsin the 1999 edition and the BAL levels in the 2009,mainly, as I said, because there was no actual measure inrelation to the 1999 edition to compare with the 2009.

Another change to the 2009 edition is the structure. Insteadof dealing with elements of construction one by one, thereis a whole set of solutions given for each BALlevel?---Yes.

What I might do now is if we can look at the 2009 edition,which is attachment 6, exhibit BFE 6. The witness numberis (WIT.7502.001.0097). What I will ask you to do is totake us through the BAL assessment process, the simplifiedversion only, which is set out in section 2 of thedocument at witness page 0113?---Probably a clearer waymight be to use appendix A of the document because it is aworked example of the assessment method, on page 81.

I think I might get you to talk us through it in broad termsrather than actually do the calculations?---There are no

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calculations involved.You will throw me completely if you ask me to start doing

calculations with you. Section 2 at clause 2.2 it setsout the steps that are to be taken in the simplifiedprocedure for a bushfire attack level assessment, if youcan turn back to page 14. If we can scroll down to clause2.2, please, and see if we can get all of those six stepson the screen. So step 1 is determine the relevant FDI orfire danger index?---Correct.

You do that by reference to table 2.1?---Yes.Which we find on the next page of the document?---On the next

page.If we could have a look at that, please. That table sets out

FDIs for each state and territory and for regions withinsome of the states?---Correct.

So in Victoria it is generally 100 and in alpine areas it is50?---Yes.

What relationship does that FDI have with the McArthur firedanger index with which we are familiar?---It is based onthe McArthur. What it does is it gives you a fire dangerindex, if you like, one compared to another, one areacompared to another area, based on the type of fuel loads,the drought index that you've got, the winds that you haveand temperature. It varies around different parts of thenation and that has a big impact on the calculationmethod, that FDI number.

So for Victoria, except for alpine areas which I assume isdefined somewhere?---It is defined in the BCA.

We have an FDI of 100 and that I take it assumes that we arebuilding to withstand an FDI of 100?---That's correct.

Moving back to clause 2.2 on the previous page, the next step,

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once you have identified the relevant FDI, is to determinethe classified vegetation type?---Yes.

You do that by reference to table 2.3, which we find on page20. Can you explain to us how that table isorganised?---It is based on a national vegetation documentto show various types of vegetation generally aroundAustralia and that people are familiar with and to give anillustrative view, if you like, of what the varioustypes of vegetation look like and particularly in relationto the height and density of those vegetation types, andthat's explained in table 2.3.

I can see on the screen we are not looking at the right page.It is page 20 of the document. The witness page is0119?---It is two pages beyond that.

That's it. Continue, Mr Eadie?---So the descriptor is a muchbetter one than the illustrations. It is just to assistpeople, the illustrations, but that gives you a very clearindication of the type of vegetation that you wouldnominate or allocate to your particular site for thisprocess.

There are a number of broad categories: forest, woodland,shrubland, scrub, mallee mulga, rainforest andgrassland?---That's correct.

Returning back to clause 2.2, the next step is to determine thedistance of the site from the classified vegetation andthat's a simple measurement. There is some guidance givenin the standard about which points to measureto?---Exactly.

Then step 4 is to determine the effective slope under theclassified vegetation?---Yes.

That's a major difference between the 2009 and the 1999

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edition, is it not?---It is a major difference, and it isa clarification. The 1999 edition measured the slope fromthe building into the vegetation, whereas - - -

Between the building and the vegetation?---Yes, whereas now themeasurement is taken from the building to, let's call it,the unmanaged vegetation. So where that area is managedand doesn't fall into those classifications forvegetation, you disregard that slope.

So the critical slope is the slope in the vegetation where itis presumed the fire will burn?---That's right.

Then step 5 is to determine the bushfire attack level from theappropriate table for the relevant fire danger index. Inmost of Victoria we would look at table 2.4.2, which is onpage 29, witness page 0128. Can you explain to us,please, how this table works?---You take those inputs thatwe just had, so you had the vegetation type, and we willsay forest. You have the slope and then you'll go downto, say, five to 10 degrees, which is the third set downthe table. You'll have the distance from the building tothe actual vegetation and then that will determine the BALthat you fall into when you go back up to the top. So,for argument's sake, if we had woodland in the thirdcolumn in woodland and we've got somewhere between 20 and26 metres from the vegetation at a 5 to 10 degree slope,you are in BAL 40. The difference between - this is thesimplified method, if you like, and if you fall into thatcategory and you are comfortable, you tick it off and itis done, but if you want to do the more scientific method,then those numbers can - you can be more specific both inthe distance to the vegetation and the exact slope. So,instead of 5 to 10, it might be 6 or 9, and it does have a

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bearing on it. That also influences then the type ofmaterial you may want to use in there, because when you dothe scientific method you come up with an actual radiantheat level that that element will be exposed to, and thenthe test criteria we have you may have a particularbuilding element that will achieve that level of radiantheat, and it may not fall neatly into these tables, but itgives you that opportunity to be much more specific.

Is it the case that the BAL levels that are derived from thesimplified method are broadly speaking more conservativethan the BAL you might achieve by using the more complextailored method?---Yes. They are, because you have arange. In the simplified method in the tables, as I say,you have a range of distances, say from 20 to 26 metres,you have a range of slopes of 5 to 10 degrees, and eachone of those will influence the final outcome, so it is amore generic-type table.

Looking at that table, we can see that the greater the distancebetween the vegetation and the site, the lower the BALlevel?---Correct.

And the reverse is also true. The BAL levels, there is BALlow, of course, but we can discount that for the momentbecause there is no specific construction requirements forthat level?---That's right.

12.5, 19, 29, 40 and flame zone. The numerical valuescorrespond to the estimated radiant heat exposure?---Yes.

In kilowatts per square metre?---That's correct.So for BAL 40 the radiant heat exposure is estimated to be

between 29 and 40 kilowatts per square metre?---Yes.And the flame zone, BAL-FZ, is where the radiant heat exposure

is likely to exceed 40 kilowatts per square

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metre?---That's correct.However, the bushfire attack levels do not relate only to

estimated radiant heat levels, do they? There are allthree of the bushfire attack mechanisms that are takeninto account in developing the constructionrequirements?---Yes.

And that's apparent from table 3.1, if we can go back to - --?---Page 33.

You know this document well, Mr Eadie. That involves going alittle bit further forward. So table 3.1 sets out thebushfire attack levels in the first column. In the secondcolumn there's the level of radiant heatexposure?---Correct.

Then there is a narrative description of the predicted bushfireattack and levels of exposure?---Yes.

That is equally important. It is not only the numbers, is thatcorrect?---That's right.

So at BAL 12.5 and above, there is an identified risk of thebuilding being subjected to ember attack?---That'scorrect.

And as you go up the levels, there are additional mechanisms ofbushfire attack. So at BAL 19 there is increasing levelsof ember attack and burning debris with increasing heatflux, and that's reflected in the numerical value that'sgiven to the BAL. Then by the time you get to BAL 40there is increased likelihood of exposure toflames?---Yes.

And at BAL-FZ it is predicted that there will be directexposure to flames from the firefront?---Correct.

In the last column on the far right-hand side there's referenceto the construction sections?---Yes.

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That's what we referred to earlier, that there is a specificconstruction section for each bushfire attacklevel?---That's correct.

There is a general prescription in 3 and then the specificrequirements for each level are set out in thecorresponding section?---Correct.

If we can just go to one of those to see how they areorganised, let's take section 7 for BAL 29 that starts onpage 58 or witness page 0157. There are a number ofheadings and these are reflected throughout each of thesections?---Yes.

That set out the construction requirements. So there are somegeneral requirements; subfloor supports, floors, externalwalls, external glazed elements and assemblies, reallywindows and doors, and then 7.6, roofs with verandahs,carports, eaves, fascias, gables, gutters and downpipesattached. Then 7.7, verandahs, decks and so forth, andthen the last one is water and gas supply pipes?---Yes.

If we can then just look a little more closely at theconstruction requirements in the flame zone which are setout in section 9, because these have been the subject ofsome discussion and will be the subject of furtherdiscussion, I imagine. It is on page 74 or witness page0173. There is a general requirement there and there is amention of the setback distance of 10 metres?---That'scorrect.

Can you explain the significance of that, please?---Thecommittee were of the view that they didn't want anybuilding built right touching vegetation, right in thevegetation. Some fire services in particular might referto that as a defendable space, some space between the

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vegetation and the dwelling, the building. So thatminimum 10 metres was put into that flame zone for thatpurpose, so there was some form of separation between thevegetation and the building itself.

Then in the second paragraph there's a qualification. Wherethat 10 metre setback cannot be achieved, elements ofconstruction or elements of the building that are closerthan the 10 metres must comply with AS1530.8.2?---That'scorrect.

And that's the testing standard that's been developed tosimulate direct flame attack?---Tests in this context andgenerally within the BCA for fire rated products is not atest that is designed to simulate. The test is that theytake what they believe to be a reasonable example of, inthis case, a bushfire at that level, and the test is aboutcomparing the effects of that fire on different buildingelements, to be able to compare one building element toanother, and the test must also be repeatable. So, youhave to be very careful of those elements you put intoyour test so it is repeatable and there's some referencein others and CSIRO in particular have concerns about thewind not being a factor, but to simulate a bushfire youwould have to incorporate the wind, you would have toincorporate the ambient temperature, you would have toincorporate the humidity, because they are all things thatcan have effect on development of that fire. So, youcan't do that in a test methodology as in 1530 and have itrepeatable, to compare one building element to another.So 1530.8.2 is purely about taking what is considered thelevel of bushfire attack, if you like, for a specificbushfire and the radiant heat and the flame contact

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associated with that and that is repeated for eachbuilding element to see if it will withstand it, so peoplehave to be very careful of that.

It is a way of testing and comparing the performance - --?---It is a comparison thing. These test criteria arepurely a comparison.

But you would agree with the criticism levelled by CSIRO andAFAC that the tests don't simulate bushfireconditions?---Exactly. They are not designed to.

Does that raise questions about the usefulness of the test,given that it is the measure for building elements thatmay be used closer than 10 metres to vegetation that mayburn?---It is a very stringent test. It is a high radiantheat level for those materials to withstand and not a lotof them do withstand it, but another important thing inthese ones for bushfire is the timeframe of that exposure.So, whereas you might have a normal building around thecity here where the requirements might be anything fromtwo hours to four hours, the immediate impact of abushfire doesn't last that long, so these are for30 minutes to see what impact that will be. So, some ofthose elements will pass and some will fail, but it isreally a comparison at a very high level of fireintensity. So we haven't reduced that and those otherissues that I have mentioned would have been taken intoaccount and they try to put up the temperature levels andthose sort of things to account for those variables.

Another thing that I will ask you to explain is what an FRL isor a fire resistance level?---An FRL is the structuralintegrity of an element, the amount of heat that mightpenetrate through it and the integrity of that element.

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Previous to the BCA we just had fire ratings and it justsaid you withstood a particular test for a certain amountof time. But now they break it up because, if you takedoors, for example, they are not a structural element, sothere's no requirement for it to be structurally soundwhen it is exposed to that test, but there is arequirement that it will retain its integrity and it won'tallow - or it will only allow a certain amount of radiantheat to pass through it at the same time. So that's whythey are broken up into FRLs.

So there are those three measures?---Yes.Then we see throughout the construction requirements for the

flame zone that elements are required to either have aspecified fire resistance level or to comply with AS1530.8.2?---Correct.

Just before we leave that testing standard AS1530.8.2, andthere is a companion standard 8.1?---Yes.

They were developed by another technical committee,FP18?---That's correct.

And they were published in August 2007?---Yes.But that was a project specifically undertaken to advance the

review of AS3959?---Once we were able to put numbers tothe risk for various bushfire situations like we've had,it was then necessary - well, we were then able to designtest criteria to satisfy that, because in the 1999 editionwe didn't have any measures to measure against. There wasno radiant heat levels nominated. Therefore, industrywere continually asked why weren't they doing somethingfor production of products in bushfire-prone areas andthey'd say, "We don't know how high the hurdle is." Oncewe were able to put numbers on the things, it then raised

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the issue: do some of these products, and I mentionedglazing earlier, some of those that we've already got,will they satisfy, and glazing came up as no, so we had togo back and revisit. It was all a development; thedevelopment of the whole process changed quitedramatically and grew as we went along.

So rather than in section 9 identify the specific products ormaterials, there is a standard specified?---That'scorrect.

And as we heard from Mr Arnel yesterday, it is taking themarket a while to catch up with the specification of thatstandard and there are a number of areas - roofs were anexample he gave - where the manufacturers haven't yetcompleted or only just now completing thetesting?---That's correct.

I'm about to move away from looking at the AS3959. If thereare any questions that the Commissioners have about how itworks at this stage it might be useful while we still havethe document open. No? I will move to the related topic,the process of reviewing the 1999 edition and arriving atthe document that you have just taken us to. Mr Eadie,have you documented meticulously in your statement thevarious meetings that took place between your appointmentas chair and the publication of the standard in March ofthis year. I'm not proposing to take you through all ofthose. What I would like to do is to put to you achronology that I have extracted from looking at them andyou can tell me if it is correct, and if I have missed outanything important. You were appointed in2001?---Correct.

In September. The work of the committee received some added

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urgency after the Canberra bushfires inJanuary 2003?---Yes.

There was some urgency communicated from the AustralianBuilding Codes Board that they would like to see thestandard revised?---That's correct.

And completed soon?---Yes. Ivan Donaldson spoke at one of ourmeetings in Canberra, in fact.

In March 2003 the first public consultation draft wasissued?---Yes.

And there were over 470 comments received?---Correct.They were reviewed by the committee at its May 2003

meeting?---Yes.And then a decision was taken in September 2003 not to proceed

to ballot but to produce a further public consultationdraft?---Correct.

That was a hotly contested issue at that meeting?---Yes.Another step that was taken at that meeting was to set up a

number of subcommittees that you refer to in yourstatement. There were the four subcommittees:Assessment?---Yes.

Which was in charge of developing the assessment methodologythat you have just taken us through. There was useraids?---Yes.

Which was in relation to what?---That was more the otherelements of bushfire protection which would have includedsprinklers and bunkers and all those sorts of issues andit didn't go anywhere for some reason.

Construction?---Yes.Which was tasked with developing the construction requirements

to match the bushfire attack levels?---Correct.And materials testing and research?---Yes.

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Those committees spent much of 2004 doing the work?---Yes.Of course, we know from other evidence that the COAG report of

2004 recommended in March 2004, although it wasn't madepublic until January 2005, that the ABCB complete itsreview of the standard as a matter of priority?---Mm-hm.

I understand from your statement that the committee was awareof that recommendation in January 2005?---They were.

Shortly before it, at around the time that the second publicconsultation draft was published?---Yes.

And that went out for comment in earlyFebruary 2005?---Correct.

And then in April 2005 the committee started reviewing the verylarge number of public comments it had received?---Yes.

This time there were over a thousand?---Correct.The way that the committee went about reviewing it was to sit

down and go through perhaps 200 comments over a two daymeeting; is that right?---Well, what we do when there areso many comments, generally the project manager and thechairman sit down and go through them and put them inorder, because you will find that quite often there is thesame comment from a number of different organisations, soyou can lump those together. Mr Michel and myself, wehave on the far right-hand column just a one word orsomething recommendation, because some of these things areeditorial. Then that goes out to the committee. We tryto get it out about a fortnight before the meeting so theycan review it and have their own little comments. So youcan get through quite a few with the full committee whenthey have got that because they pick out - - -

Are they the summary of comment documents that you haveattached to your statement?---That's right.

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Notwithstanding that preparatory work that you did, it stilltook the committee five, possibly six meetings to workthrough all of the public comments?---Yes.

And that process was only concluded in June 2006?---That'scorrect.

Then in October 2006 a pre-ballot draft was circulated?---Yes.It didn't proceed to ballot at that stage mainly because of

disagreement about the flame temperature?---Yes.The draft was based on a flame temperature of 1,000 kelvin but

there were a broader range being advanced by committeemembers?---Yes.

Then in April 2007 the Australian Building Codes Board conveneda workshop?---Yes.

At which members of the committee participated together withrepresentatives of the board?---Yes.

And other organisations?---No, it was just a representation ofthe committee.

There are notes of that meeting that are attached to yourstatement at BFE 66?---Yes.

But the particularly important development at that meeting wasthat the ABCB took responsibility for determining theflame temperature ?---That's right.

They said, "We will decide what level of stringency isrequired. You do the rest"?---That's right.

So that took that very difficult issue off the table forFP20?---Yes.

Then in August 2007, as you have told us, the two testingstandards were published. In October of that year asecond working draft was circulated among thecommittee?---Yes.

Then in January 2008 a further pre-ballot draft was

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circulated?---Correct.It was at that point that section 2, the assessment

methodology, was in substantially the same form as we seeit now?---Yes, pretty well.

In August 2008 the draft standard was sent to the AustralianBuilding Codes Board for it to conduct its regulatoryimpact statement process?---That's correct.

The consultation draft regulatory impact statement was issuedin November?---Yes.

Public comment closed in December. Then shortly after, I thinka week, a little over a week after the February fires, theABCB completed the RIS process and it then went back tothe committee?---Correct.

There was a meeting of the committee on 25 February?---Yes.At which some but not all of the remaining issues were

resolved?---Mm-hm.The standard went to ballot on 27 February?---Right.The ballot closed on 3 March?---Correct.Were you involved in counting the ballot?---No.That was up to Mr Michel?---That was Mr Michel.Did Mr Michel contact you and make you aware of the number of

negative votes that had been received?---Instantly.Because there were five negative votes at that stage out of

20?---Yes.Were you involved in discussions with the FPAA about whether

they were prepared to agree to publication of thestandard?---No. Mr Michel and I discussed a hopeful wayforward with all the negative votes, and then he made thecontact with FPAA.

Having resolved the FPAA's position, did he also contact CSIROand AFAC, do you know?---As far as I know.

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But they were not prepared to change their stance?---Correct.As we have heard from Mr Tucker, on 5 March the standards

development committee decided to publish, notwithstandingthat two major interests were maintaining a negativevote?---That's right.

That's a fairly long history, Mr Eadie. Looking back at itnow, in hindsight, could the review of the 1999 edition ofthe standard have been brought to a conclusion in a moretimely way?---I don't believe it could have been very muchquicker than what it was because of the development ofboth the testing criteria because, as we started todevelop an assessment method, a technical assessmentmethod, that had implications on the constructionelements. So they had to wait until we had resolved allthe calculation methods. Then once the constructionpeople got involved, they said, "How do we now measure theperformance of our building elements," which brought aboutthe test criteria. So it was a growing process, the wholething. You couldn't do any of them until we had actuallycome to a reasonable agreement that this was the proper orthe correct methodology to use to determine the impact ofa bushfire on a building. So, until we had come up withagreement with that in general terms, you couldn't moveforward on either of the other construction or the testingcriteria.

Am I right in my assessment that both of those issues, thetesting methodology and the assessment methodology, hadreally been resolved by the end of 2007?---Pretty much.

The process of reviewing public comments seems to have beenextraordinarily time consuming and no doubt onerous forcommittee members?---It is.

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Is there a more efficient way of doing that, do youthink?---I don't think so if you are going to retain thatconsensus approach that Mr Tucker spoke about. If youhave a first over the line approach in a voting process,people tend to perhaps lose more interest or you getpeople voting for perhaps the wrong reasons because theyhave allegiance with a particular organisation or aparticular product or industry, whereas the consensusapproach leaves people more open to change their mind, ifyou wish, based on the information that can be provided.They don't feel as locked in. So it is important thatthey all have input into that process, because that'swhere they get to learn about some of the areas that theymay not be as familiar with but those areas may wellimpact on their area of interest and expertise.

Because one way that the process could have been sped up wasfor meetings to occur more frequently, but the difficultywith that is that all of the members of the committee arevoluntary?---They are all voluntary and, as you mention,they come from all around Australia. So it is a bigcommitment from their employers and themselves to attendall these meetings.

Even at the end of this very, very long process where allpoints of difference were debated at length, consensus wasnot achieved. Would it have been worth testing thatconsensus by going to ballot at an earlier stage?---Wedidn't quite have the document ready for publication atthat point and it was just fortunate, I suppose, that wehad it ready near the end of 2008.

Can I ask you now about future projects of the committee. Thecommittee has met once or twice since the publication of

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the standard?---Once, the full committee.There are a number of projects that it has before it. The

first is the ongoing review of the standard?---Yes.There is the commitment to review requirements for the flame

zone in the light of what this Commission finds. Butthere are also a number of technical issues that have beenidentified by CSIRO and AFAC in particular?---Yes.

That are the subject of ongoing discussion at thecommittee?---Correct.

How are those discussions proceeding?---There were to be twoamendments to the standard, and the first one is with thecommittee at the moment to be approved and circulated. Sothat should happen within the next few weeks.

What subject matters does that deal with?---That's basicallyjust editorial and sort of minor changes, non-technicalissues. Because the standard was published in such arush, there's lots and lots of little editorial thingsthat the editor is quite concerned about. So they arebeing fixed up. The next stage is to look at those 16items and allocate where they may fit in the wholeprocess. Some of them will hopefully be picked up by thecommittee and addressed because they may be resolved in amatter of hours. Others will develop projects of theirown, the sprinkler, sprayers, bunkers and that may well beseparate projects within their own right. So the nextstep will be for the committee to sit down and workthrough those and see which ones they can resolve in theshort time. A number of those from CSIRO would fall intothat category, I would suggest.

You mention 16 items. Do we find them set out anywhere? In thepreface?---They are in the preface of 2009.

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Yes. So they are the matters identified for future additionsand amendments on page 3?---That's right. That was partof the agreement we made with the full committee, and inparticular with CSIRO and AFAC and FPAA, that we were nottrying to sweep these issues under the carpet, we wantedthem up front and we were all well aware that there wassome disagreement on some of those issues. In some ofthem there's ongoing research that's happening, but theresearch has not been developed to the point of the fullcommittee to be able to make an informed decision upon.So that's why we've put them here to say, "Be aware thatthese things still need some work to be done."

Do you anticipate that at the next meeting of the committee youwill run through these 16 items and prioritise thatwork?---Yes.

When is the next meeting of the committee?---There is none setfor the moment, that I'm aware.

The committee has in the past met approximately four times ayear, has it not ?---Yes.

How long do you anticipate that resolution of the 16 issueswill take?---Those that can be resolved within thecommittee I would anticipate would probably be resolvedwithin two meetings. Those that will be their ownprojects, as I say, sprinklers, sprayers and refuges forexample, they will probably take anything up to two yearsto get those resolved.

They may well be the subject of a separate standard?---Theywill be, and a project proposal to go along with those.

If I can ask you briefly about bushfire sprinklers. This is aparticular project of yours, is it not?---I'm puttingtogether the project proposal for that.

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Through another committee, the number of which escapes me forthe moment?---Yes.

FP?---004.You have a project proposal almost ready to go to Standards

Australia?---That should be with Standards within theweek.

I understand the pathway that it is likely to proceed upon isthe committee development pathway?---Correct.

And you anticipate that, once the project has approval, it willtake about two years to develop that standard?---Yes.

According to routine Standards Australia consensus decisionmaking methods?---Correct.

Another project for the future is the development or therevision of handbook 36. Can you describe for us what thehandbook is?---The handbook addresses the issues that arenot construction elements, that are not referenced withinthe BCA; things of planning, access, water supplies, whatpeople do and maintenance of their landscaping andvegetation and those types of issues. So it becomes acompanion of 3959, because 3959 on its own will not save abuilding in a major bushfire situation. It is a wholepackage of elements that provide that level of safety. Weonly pick up on a few of those here. Those issues ofpeople evacuating their operations and what they do andmaintenance of their properties and all those sorts ofthings are outside the scope of the standard because theBCA does not address those issues. As this isspecifically called up in the BCA, it has to be aconstruction element. So HB36 addresses all those otherissues for guidance.

The existing edition of the handbook is well out of date, is it

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not?---It certainly is.It was prepared to be a companion to the first edition of the

standards, the 1991 edition?---That's right.Is the handbook currently being revised?---Yes, it is.How is that occurring?---The project manager and myself are

rewriting that document at the moment.How far along are you?---We are probably 25 per cent.When do you anticipate you will complete your rewriting?---We

are supposed to have it out at the end of September.When you say "out"?---Ready to be published.Will it go to the committee for comment before

publication?---Yes, it does, but it is not voted upon. Itgoes to the committee for their comments. Their commentsare considered and either put in the document or not, andthen the document goes for publication.

So it may be published by the end of the year?---That'scertainly our hope.

Will you be able to provide us with a copy once it has been, orsee that Standards Australia or SAI Global, whichever itis, can do that?---I will.

The last thing I want to ask you about relates to bunkers. Wehave heard a bit over the last two days about the absenceof any standard dealing with bushfire bunkers?---Correct.

That's been identified as an issue for further work by thecommittee. Is it an issue that's been actively driven bythe committee at this stage?---No. It has been discussedin general terms, but there's been nothing formaldiscussed about it.

So it is not like your bushfire sprinkler project at the stagewhere somebody is putting together a projectproposal?---No. Nobody is driving that project at this

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time.What in your view are issues that should be considered in the

development of any standard for bushfire bunkers?---Thereare certainly issues of the actual construction of thebunker, be it above ground or below ground or a shelterwithin a building itself. So there's at least those threeelements. Underground, you have issues of drainage andmoisture and things of that nature. Aboveground, you havethe impact of falling trees and other debris. There areissues of knowing when to go into a bunker, how long theair supply may last, the operation of doors. PersonallyI'm not in favour of any mechanical type systems in these,like supplying air and light and all those sorts ofthings, because they invariably require maintenance andtherefore you would be relying upon those. The oxygensupply and when people could come out is important. Thedistance from the actual building that is occupied to thebunker is also important, that you have got to be able toget to it. So there are many, many issues in relation tobunkers. That is not to say for one minute I'm againstthem. I have been involved in a couple that I'm verycomfortable with, but they are in very specific locations.I think as a general rule, I think there's lots of issueswith that, it needs to be specific to the site and theoccupants involved, those people. The concern is themaintenance of it over the long-term, that they don't turninto a storeroom or something that could be even morehazardous than staying in the house or the building.

You wouldn't want to store your old paints in yourbunker?---Yes, and unfortunately that would happen in somecases, I'm sure.

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MS RICHARDS: Thank you, Mr Eadie. I have no further questions.Do the Commissioners have questions?

CHAIRMAN: Can I just follow up in relation to bunkers.Presumably in this area your own experience as aconsultant is what to some extent you are relying uponwhen you bring that experience to bear on the question ofwhat are the problems as well as what are thepossibilities with bunkers?---That's correct.

Have you seen lots of bunkers of one kind or another?---No.I'm only aware of two that I have been involved in. Theyare both set into the side of a hill. So they areprotected from any falling embers. One in particular, thesite is totally self-sufficient for water supplies andelectricity and everything else because it is very remote.It is in excess of one and a half kilometres from thestreet up a mountain to where the house is. It is abeautiful spot. They wouldn't leave there in a bushfirebecause it would be more hazardous to leave their locationout into smokey country roads and that sort of thing.They just have a bunker there that they use. One inparticular is a wine cellar. That's all that's in there.They can use that whilst that firefront passes them.There is certainly I believe cases for them, but I thinkthey need to be specific and designed specific for thatlocation.

At the moment all the Commission I think has is an indicationfrom some submissions that there are a lot of bunkerseither in use or contemplated, but also indications thatthe evidence will reveal that there have been a number ofdeaths in bunkers and a number of people who claimed tohave been saved by bunkers. Now, you can't add much to

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that on the basis of your experience, and I'm just tryingto find out at which stage, seeing there is such a talkabout it being an issue that needs to be addressed, whatevidence there is with respect to those matters, and youcan't add a great deal?---Not at all.

COMMISSIONER McLEOD: Mr Eadie, just to take that a little bitfurther, a bunker by sort of definition needs to be arelatively simple kind of item?---Yes.

I guess it is mostly a structure. It could take many differentforms?---Certainly.

Because of the sort of indeterminate nature of what constitutesa bunker, is it an easy task to create effectively abuilding standard that would specify certain minimumrequirements that would need to be incorporated into abunker without inhibiting the ingenuity in being able todevise an appropriate bunker for a particularcircumstance?---I think the construction elements of abunker is probably the simplest part of it, would be theeasiest part to do. It is those issues of duration ofoxygen supply and the impact of a major bushfire on thatoxygen supply within a bunker, and then access and egressfrom it. People talk about communication in relation tobunkers. Do the fire services know where there arebunkers? Are they going in to try to perhaps rescuepeople or something and are aware that there are bunkers,and not bunkers? I think the construction elementthemselves is probably the simplest part. You coulddesign that without a great deal of difficulty. It wouldbe the concern or my concern how that particular structuremight perform for the occupants within it, not from astructural point of view but from the environment that

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they might be faced with in there to ensure that you arenot going to get exposed to too much heat and temperaturein there, the smoke that might get in there, that they canstill get out after that firefront has passed and theremay be timbers or limbs of trees and that obstructingdoorways and all those sorts of things.

Would there need to be some judgment made about the level ofprotection it would provide such that it may not becapable of being claimed to always be safe but is at alevel where it is likely to be safer than anything elsethat is in the immediate vicinity?---I think the ones thatI have got in mind, you would be far safer staying therethan evacuating the site. That's certainly my view.

So the standard may not necessarily be designed to satisfy arequirement that it would be safe in allcircumstances?---That's correct.

MS RICHARDS: I understand that AFAC and Mr Houston forStandards Australia have some brief cross-examination.

CHAIRMAN: Yes.<CROSS-EXAMINED BY MS FOX:Mr Eadie, my name is Fox. I appear on behalf of AFAC. I only

have one question for you and it is just really a matterof clarification. It relates to something you said afterthe negative votes were received in the ballot earlierthis year in 2009. The Fire Protection Association ofAustralia were contacted, I suggest, by StandardsAustralia to discuss their negative vote?---Yes.

And it was conveyed that they would support publication but notwithdraw their vote. But I suggest AFAC were in no waycontacted to discuss their negative vote. Do you agreewith that?---It was my understanding the representatives

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of AFAC were contacted.Perhaps if this document could be brought up. It is at

(WIT.7502.006.0062). It is attachment 82 to yourstatement?---Yes.

It is a document headed, "Action on comments and/or resolutionof negative votes". Do you see that?---Yes.

I understand that's a document that was produced internallywithin Standards Australia?---Yes.

If you go down to the paragraph headed "negative votes" and itdiscusses the three organisations that submitted thenegative votes?---Yes.

You will see there that FPAA as a major stakeholder wascontacted in an endeavour to resolve the negativevote?---Correct.

And then further on, on the last line in relation to AFAC andCSIRO, it says "attempts to negotiate negative votereversal were not made". Do you see that? It seems a viewwas taken there was no point?---But it says just abovethat "supporting publication of the standard", that'sFPAA, "but regretted the two members concerned wouldnot" - oh, that was FPAA.

That relates to FPAA. But if you go on from there it says,"Based on discussions at the FP20 meeting back in27 February 2009, it was apparent that AFAC and CSIROwould not reconsider their position," and so they weren'tcontacted?---I thought they had. That's Mr Michel'sreport. I would rely on that.

They certainly weren't contacted by you?---No, certainly notme.

Thank you. That is the only matter I wanted to clarify,Commissioners.

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<CROSS-EXAMINED BY MR HOUSTON:Just in relation to that document, Mr Eadie, it was apparent to

you and to your knowledge the other committee members atthat stage that AFAC had very strong views on this issuein relation to the flame zone?---And had those for sometime.

And they had been issues which the committee had gone over withthem, I would suggest, time and time again?---Yes.

So the issues were well known?---Certainly were.If I could take you just very briefly to the preface of the

2009 standards. So that's BFE 6 at page 3. You wereasked some questions about a particular test, AustralianStandard 1530.8.2, and I think there is also 8.1 aswell?---Yes.

These are the tests which are mentioned in the standard inrelation to construction in the flame zone?---Correct.

Within that 10 metres. The committee which developed thosetests, are you aware of whether both AFAC and CSIRO wererepresented on that committee?---To my knowledge, theywere both represented on the committee.

To your knowledge, did they agree with those particulartests?---The project manager is also Mr Michel for thatproject. He had informed me there were no negative voteson those standards when they were published.

If we could look at the preface at page 3 at point (iii).Firstly, these issues listed here are the 16 issues youreferred to?---Correct.

Which were raised by CSIRO and AFAC, and which the committeeagreed required further discussion?---Yes, and some otherplayers raised some of those issues too.

Issue number (iii), the flame zone, the 10-metre setback, again

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there is a reference there to AS1530.8.2. You say therethe appropriateness of the test criteria for the risk isunder consideration?---Yes.

Again that's because of the criticisms that have subsequentlybeen made of that test by CSIRO and by AFAC?---Correct.

So the committee are going to look again at the appropriatenessof that particular test?---That's right.

Thank you very much. Thank you, Commissioners.MS RICHARDS: Nothing in re-examination.CHAIRMAN: Nothing arising from that.MS RICHARDS: May Mr Eadie be excused, please?CHAIRMAN: Thank you, Mr Eadie; you are excused.<(THE WITNESS WITHDREW).CHAIRMAN: We will resume at 2 o'clock.LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.00 PM:CHAIRMAN: Before we get under way, I would mention there has

been a commuter advice issued by the SES headquarters. Itis just an indication that because of the strong windsoutside that there may be disruptions to power. We arecontemplating proceeding as normal, but there may bedisruption to power. There is also an indication to thosethat can catch trains or trams, they may be prudent to doso earlier rather than risk disruption later. Yes,Mr Rush.

MR RUSH: Thank you, sir. I call Mr Peter Wiltshire.<PETER JAMES WILTSHIRE, sworn and examined:CHAIRMAN: Take a seat, Mr Wiltshire. Just bear in mind that

you are probably about the right position now. If you gettoo far back it is hard to hear you, but if you get tooclose to the microphone it gets a bit breathy. We willlet you know if there is any problem.

MR RUSH: Is your full name Peter James Wiltshire?---Yes, itis.

You currently reside at 185 Donaldsons Road in KangarooGround?---Yes, that's right.

Until 7 February did you reside at 2135 Heidelberg-KinglakeRoad, St Andrews?---Yes, we did.

Was your home destroyed by fire on that day?---Yes, it was.Mr Wiltshire, just a couple of matters. Had you lived at that

address for approximately 25 years?---Yes, indeed.Your three children were born whilst in that family

home?---Yes. No. No, they were born before we moved intothat establishment.

You are retired, but previously held a position as sportsadministrator with the Royal Victorian Bowls Association

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for 27 years?---Yes, that's right.You are a volunteer member of the St Andrews Fire

Brigade?---I am, yes.And currently its chairman and brigade treasurer?---Yes, that's

right.Your son, Simon, is a volunteer firefighter with the CFA with

the Research brigade?---Yes. He was with St Andrews untilJanuary, when he transferred home and transferred toResearch.

Your wife is also a volunteer member and active member of theSt Andrews brigade and a qualified wildfire and lowstructure firefighter?---Yes, that's right.

You also, Mr Wiltshire, are a member of a fireguard group inyour local area?---Yes, we are.

And for how long approximately has that group beenestablished?---Fifteen years perhaps.

The purpose of the group and the activities of the group arewhat?---To be an active phone tree in case of an emergencyor possible emergency where everyone would phone down theline of the tree to pass the messages on, and it wasparticularly relevant where there were messages ofpossible fire and we usually used it every time there wasa total fire ban, just to make sure it was working and toget the message through to those not in the CFA that theywere getting the message that it was a bad day coming.

As a member of the CFA and a firefighter with the CFA, did youhave a pager?---Yes, I did.

On 6 February did you get a message as to what could beexpected on 7 February via means of the pager?---Yes, wegot a very strong message.

Can you indicate to the Commissioners what the nature of that

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message was?---That it was going to be a seriously bad daywith a fire danger index of - I think it was 165.

For you, getting that message of a fire danger index of 165,what did it mean?---That it was going to be the worst daythat we had experienced almost in memory. It wassupporting what we had actually heard on television.

As a consequence of receipt of that message, from your home wasthe phone tree informed of the message that had beenreceived?---Yes, it was, but perhaps not in the normal waybecause my wife decided that it was so serious that shewould personally ring everyone on the tree rather thanjust to pass the message around the tree.

Did she convey a particular message in relation to members ofthe fireguard group who were in the phone tree that hadchildren?---Yes. She virtually begged them to depart thearea that morning, the Saturday morning, and we werepleased that all of the children were evacuated before thefire arrived.

I should perhaps go back, Mr Wiltshire. Have you had astatement prepared for you by solicitors at the RoyalCommission?---Yes.

Have you recently read that statement and are the contents trueand correct?---Yes, it is true and correct.

The statement, Commissioners, is at volume 85, tab 17, andI seek to tender it.

#EXHIBIT 173 - Witness statement of Peter James Wiltshire.(WIT.075.001.0001).

MR RUSH: I just want to ask you about one of thosecommunications on the morning of 7 February. Were theMatthews family part of the phone tree and was the homecommunicated with on 7 February?---On 7 February, yes. My

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wife was actually speaking to Sam Matthews about half anhour before the fire hit and also I think again when aspotfire occurred on one of the hills to the north of us.

Did she receive information from Sam Matthews as to what wasintended with his sister and what he intended todo?---Yes. Their parents were down the beach and heindicated that his sister, or he insisted that she go offto work and he was staying behind to defend the house.

Did she also indicate that if there was any concern as to whathe should do?---Indeed. She said if he was worried in anyway he should come up to our place, which was only severalhundred yards, metres.

We have had a brief look before you gave your evidence at aGoogle map that we can bring up on the screen just tofirstly have a look at your property. Firstly, is theproperty how many acres approximately,Mr Wiltshire?---Twenty-one and a half.

If we look there, perhaps if we can come in a little bit, wecan see a dam there. Is that dam on your property?---Themiddle of the screen, yes, that's the dam on our property.

Whereabouts is your house from that dam?---To the west or tothe left.

Perhaps if we can move the cursor over to the left. Thestructure there that seems to have a tinge of blue on itas we look at it from here, is that your house?---Yes, itis.

Then if we could perhaps go up the road, do we see the Matthewshouse on Google Earth there?---Yes, near the top of thescreen to the left. Keep going to the left. That's thehouse there.

Perhaps whilst it is up, if we can take a more general view,

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just come out a little bit, the Heidelberg-Kinglake Road,we see the figure "A" there. Is that letter on theHeidelberg-Kinglake Road?---Yes, it is.

The road that then goes up the image, is that MullersRoad?---It goes to the left and then up the centre of thescreen, yes, that's Mullers Road.

Mullers Road in fact borders your property; is thatcorrect?---Yes.

The vegetation at the top of the image and to the left of theimage, what is that?---To the top of the image isbasically gum trees. To the left and top, just probablyoff the screen is 400 acres of bergen.

What is bergen?---It is like a tea-tree, extremely flammableand it lets off gases in heat.

You are in the Nillumbik shire?---Yes.Are you allowed to clear that in any way?---No.Why not?---Well, they call it natural vegetation and we are not

allowed to clear it without a permit. But it is probablythe most noxious and burnable material. It really is apest and dangerous.

I will come to it in more detail, but are you able to give anindication to the Commissioners as we look at GoogleEarth, firstly where the firefront came from, if we lookat that image?---The firefront itself came initially fromthe north-west and then with the wind change it came fromthe south-west, so that's both on the left-hand side,obviously from the top of screen from the north-west.North is just slightly to the right of perpendicular.

Again, I'll come to it in a little bit more detail, but therewere two horses on your property; is thatcorrect?---That's correct, yes.

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They were both found dead by your wife and daughter, I think,or wife and son?---Wife and son, yes.

The next day on 8 February. Whereabouts were they?---Theywould be in that cleared area to the top right of thescreen.

Firstly, going back, Mr Wiltshire, what was the nature of theconstruction of your house?---It was double brick, claybrick on the outside and besser concrete brick on theinside. The internal walls were also besser brick.

What was the roof comprised of?---That was a steel clip-lockroof. The garage was single brick, but under the sameroofline.

In relation to the house, how many squaresapproximately?---Approximately 18 squares, and anotherfive for the garage.

Was there a verandah on the side of the house?---Yes, therewas, on the east side, which is the right-hand of thescreen, a two metre verandah.

And the posts of the verandah were of whatconstruction?---Wood.

Did you gain access to the house from Mullers Road?---Yes,that's right.

Was that a gravel driveway?---Yes.Were there any garden beds abutting the house?---Between the

drive and the house there was about two metres from thehouse a small garden bed which was just ground cover.Between the driveway and Mullers Road, which was a bankgoing up, there was mainly photinias lining the fence lineand a little bit of ground cover.

For preparations for 7 February, first, was it the intention ofyou and your wife to stay and defend the property or to

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leave the property?---No, it was intended to stay.In relation, firstly, to the dam, was there a pump at the

dam?---Yes, we had a petrol firefighting pump on the dam.How did the water get from the dam to the house?---Several

lengths of hose.Were there other tanks around the house?---The house tanks were

on the northern side, which you can just see on thescreen, northern end of the house, just downhill. Therewere two 6,000 gallons, about 52,000 litres, and there wasalso a metal tank on a wooden tank stand, but the woodenstand melted and it ended up on the ground in pieces.

And the 50,000 litres of water, were they in two tanks?---Yes.What was the nature of the construction of those?---Concrete.Did those tanks withstand the fire?---Yes, they did. They are

still half-full.Did each of those, did the 4,000 litre tank and the concrete

tanks have a pumping mechanism?---We had an electric pumpbetween the two tanks, the two concrete tanks.

Did you have a generator in case of any disruption to powersupply?---Yes, we did. It was actually in the garage ofthe house at the front of the garage.

The garage was part of the house, in effect?---Yes.Was that equipment on 7 February all in working order?---Yes.

We checked the generator the afternoon before to make sureit was working.

On 7 February, Mr Wiltshire, did you attend the St Andrewsbrigade?---Yes, I was down there early in the afternoon.

Can you just tell the Commissioners briefly what therequirements, what duties were performed by you in yourCFA role on that day?---We had pager messages that therewas smoke sightings in St Andrews and I drove the truck

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out to one of those smoke sightings, which was a falsealarm, came back to the station; a second call-out whichI also drove to, again a smoke sighting that was a falsealarm for our area, and then back to the station. Thenext pager message was a call to Eagle's Nest Road, butthe captain, as we had plenty of firefighters in thestation, quite rightly decided to rotate the crews andI was off the truck. As a consequence of that and thefact that there were plenty of firefighters in thestation, I rang the wife and we decided I'd go home andhelp her because she was getting some large embersfalling, albeit that they were dark and not alive.

So you returned home. Do you recall approximately what timethat was?---I think it was probably about 4, 4.30.

When you got home, what was the position then and what did youdo?---The embers, as I say, not live ones were coming andwe could see some smoke on the horizon which would havebeen the Kilmore-Wandong area, so I went up on the roof tomake sure the gutters were clear, which they were, andstarted spraying the roof and the areas on top of thehouse with water.

From the roof did you observe a spotfire?---Yes, we did, on thenorth-east section across the creek on our neighbour'shill, northern neighbour's hill.

Did you ring 000 and the Victorian fire line in relation tomaking a report of the spotfire?---Yes, I did, whilstI was on the roof. Got through eventually, only to findthat they had already had it reported and I found outlater that the wife, amongst others possibly, had alreadyreported it from her position.

Was your daughter in transit at this time?---Yes. We found

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that my son had rung her and suggested she come to assist.When my wife spoke to her on the phone, she was only twoor three kilometres away.

So when she arrived at your home did she relieve you on theroof?---She did indeed.

And what did you do?---I then laid a power cord down from thegenerator to the pump by the tanks and by that stage therewas fire, the spotfire in the southern paddock hadcommenced as well, so I started trying to put that out.

Did you have any success in putting it out?---No.What were you doing to try to put it out?---I was using the

hose that was being fed by the pump on the dam.With the application of the water, you weren't getting

anywhere?---Correct.What happened with that spotfire?---It spread to a couple of

haystacks in the paddock, but it also crept down the hillfaster than I would have expected on the very short grassand it created some radiant heat that set fire to a truckbody that we had adjacent to the garage that was used forstoring material from the motor trimming trade, where mylate son had been an apprentice motor trimmer.

Can you just explain to the Commissioners what you mean byradiant heat causing that to ignite?---Well, it ignitedwithout being touched by any flame. The heat was sointense that it just caught fire. The steel obviously gotso hot from the radiant heat that it combusted thematerial in the truck.

If I can just go back, you indicated you were attempting tofight the fire, the spotfire, and had a hose and water.What was the nature of the vegetation in the paddock wherethe fire was burning?---In the paddock it had been - it

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was very short grass. We had a line of oak trees alongthe eastern boundary of the house paddock, but it wentthrough those and the grass in the house paddock was shortgrass, only a couple of centimetres.

Was your wife also attempting to deal with a spotfire on theother side of the house?---Yes. She was down the otherend of the house, correct.

Was she attempting to stamp that fire out?---Yes. That wascoming up the grass in the house lawn, if you like to callit that, and she was trying to stamp it out with the solesof her boots.

Mr Wiltshire, you also make reference to a horse float and theeffect or impact of radiant heat on the horse float.Again, can you detail to the Commissioners what youobserved there?---That was down the northern end of thehouse, the end where the water tanks were. It was about ametre and a half from the house, but without any flame.The radiant heat basically set - the metal structureheated so hot it combusted the wood and the rubber liningof the float and set it aflame.

You mention that as being about 1.5 metres from thehouse?---Yes.

Was it close to an aluminium shutter which was covering awindow?---Yes, it was. It was the only window of thehouse that had an aluminium shutter on it. That shuttermelted and set the wooden fascia board above the windowalight.

Just whilst dealing with that, you mention the shutter, thealuminium shutter melting. Was there western red cedararound that window?---Yes, there was.

What was the effect on the western red cedar?---Not that

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particular window, but there was one window on the westernside of the house that I observed the glass, standardglass melting, but the western red cedar window frame hadnot been burnt.

With the horse float alight, did your wife attempt to put aline of water between the float and the house?---Yes, shedid, although she was unsuccessful because the wind becameso strong that it virtually blew her off her feet, almostblew her off her feet. So she decided to go back and atthat stage go into the house and try to fight from theinside.

Did she call upon you to also come into the house?---Yes. Thedaughter went first and then I followed and we wereendeavouring at that stage to throw buckets of water onthe fires.

Had you put water into bath and water troughs in the laundryfor that purpose?---Yes, she had.

What was the position with the electricity at this stage?---Itwas about that time that the electricity failed. Afterthrowing some buckets of water on the fascia boards,albeit from the inside, I then opened the garage to tryand start the generator.

What was the position when you went into the garage?---Well,there was some flame on the fascia boards high up, butthat was the only part of that end of the house that wasburning at that time.

Was it possible to start the generator?---Unfortunately, no, itdidn't start.

Why not?---I believe the fuel had evaporated, the petrol.When had you last checked the fuel in the generator?---Friday

afternoon.

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What was the position then?---It was full and ready to go.Was it possible to refuel the generator?---I don't think it was

safe. It was too hot to do so. At that stage there weresome flames outside the garage on the southern end andwith the wind change it came around and attacked me at thefront of the garage.

When you say it attacked you, what happened?---I was trying tostart the generator and the flame - the wind brought theflame around the side of the house and I got burnt on botharms and the face and inhaled the hot air, which damagedthe airways.

As a consequence of that, Mr Wiltshire, what happened toyou?---Once we got out of the house and down to the firestation, with no ambulances available, I was taken to theAustin by police car and admitted and I was, after sometime in emergency, put on an induced comma for 24 hoursand oxygen for a couple more days for the airways and myarms were treated for burns.

You are still wearing compression bandages?---Yes, I am.Before your removal to the brigade, you continued to make

observation and perform what you could do around thehouse. You make mention of observing a fireball approachor hit the house?---Yes, that would have been just as thewind was changing. It came from the western orsouth-western side of the house. It was like a fireball.Initially, they were probably only seconds apart. Itappeared to be burning above the trees, the gas, and thenit came through the crown and then followed by theundergrowth. Very quickly, though, one after the other.

What was the position with your house by this stage?---At thatstage it would have been burning on both ends. At some

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stage the fire from the southern end went down the fasciaboard of the eastern side. I'm not sure; I think that wasprobably before the fireball and then the fireball cameacross and, as I say, it melted the windows.

Did you actually see the windows in effect melting?---Thatparticular one, yes, I did.

Was there a decision made to evacuate the house?---That was atthe time when the wife said, yes, we've got to get out.The front had basically just gone over the house and withthe house burning on all four sides it was time to getout.

Did your daughter go to her car, which was a Commodore?---Yes,she did.

Was she able to start that?---She started it, yes, and it madea funny noise. We found that was a warped fan that washitting the radiator. But, notwithstanding that, shetried to back up, but in her haste it was digging into thegravel and so she abandoned that idea and the wife gothers going and my car was in between the other two.

So did your wife and daughter get into your wife's car, whichI think was a Subaru Forester?---Yes, that's right.

Where did they go?---They drove out of the drive and turned,thinking they might be able to turn down by the Matthews'house, and particularly as there was what we would call aturning circle, but a cleared patch that might have beensafe from the fire, but she only got over the brow of thehill and looked down towards where that was and found thatthe Matthews' house was - all that was left of it was twochimneys, and the pine trees surrounding it were allablaze, so she abandoned that idea and backed up.

Was it the intention that you would follow in your car?---Yes,

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that was the thought, but I had mislaid my keys. I hadactually dropped them on the drive near the garage, soI was actually still on the driveway, gasping for air.

So your wife and daughter returned to the house?---Came back upMullers Road and backed into the driveway of the neighbouropposite our house.

Were you able to join them in the car there?---My daughter camelooking for me and assisted me back to where the car was,yes.

Did you sit out the fire, as it were, in a clearer area in thecar?---Well, it was a clearer area, although I was a bitconcerned that we were under a gum tree, and I can'treally tell you how long we sat there, but it was at thattime that two firefighters walked down Mullers Road, muchto my amazement.

Were they, to the best of your understanding, from the WongaPark brigade?---Yes.

Were they looking for Sam Matthews?---Yes, they said they werelooking for Sam. They had left their truck up virtuallynear the corner of the main road and Mullers Road.

As a consequence of the contact with them, did the family leaveto attend the St Andrews Fire Brigade station?---Yes, thewife drove up Mullers Road and subsequently down the mainroad, but basically dodging the fallen burning trees onboth roads. It was a good - the car did jump a couple ofthose trees that were burning, albeit the thinner end.

Mr Wiltshire, what was left of your house?---Well, the wallswere still standing and the roof had fallen down onto alower level. You could see a lot of doors. Actually,that was where the windows were. It was a total loss.Subsequently, the coroner lifted the roof off and the

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walls were pushed in, probably by that machinery.Is it your intention to rebuild on that site?---Yes, it is.Is the planning process almost in place to enable that building

to take place?---Yes. The planning permit has beenissued. The building permit is imminent, we are told, andthe builder who built the house 25 years ago is almostready to build again.

You indicate in your statement that there are a couple ofadjustments in relation to the building?---Yes.

What sort of matters will you be attending to in therebuilding?---Toughened glass, double glazing. I thinkthat's probably one of the most important. We will putdouble brick into the garage instead of the single. Thefascia boards, we will clad those with a fire-resistantmaterial and line the verandah.

Have you made any decision between diesel and petrol-drivenpumps?---Yes, I think we will be going diesel in thefuture. In fact, I know so.

Can you indicate to the Commissioners the importance of any ofyour and your wife's CFA training in relation to the wayin which you were able to handle the obviously fairlytraumatic situation?---I think one of the main features isthat we didn't panic. We had planned to stay. We had arough idea of what we wanted to do. We thought we had thewater and the facilities to defend, but as it turned outwe didn't. We had the water, but we didn't have theimplements to deliver it. We even had 1200 litres on atrailer by the car on the driveway and that didn't meltand that was still there, but we weren't able to utiliseit. The fire came so quickly that we were so busy. Weweren't frightened. We were busy just trying to do what

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we thought was going to defend the house, deliver thewater until the water wasn't there any more. The sourcewas there, but ...

Did it surprise you, going back to your attempt to put out thespotfire, that the application of water didn't put thefire out?---Yes. Yes. I was pouring the water on it andit was momentarily putting that section out, but it wasfighting a losing battle.

Just in relation to the construction of the new house, you fallin a wildfire management overlay?---Yes, we do. We aretold that the new BAL is only level 2, much to oursurprise, but we are looking at building about level 5 bychoice. One thing that puzzles us is the requirement foraluminium windows at level 5 and 6. From our experience,even the western red cedar, let alone the hardwood, hadnot burnt when the glass was melting and the aluminiumwindow frames, we are led to believe, start melting atabout 640 degrees, less than the glass melting.

MR RUSH: I have no other matters, Commissioners.CHAIRMAN: Touching on the Google map which is not up now,

there doesn't seem to be much vegetation to burn aroundyour house. Where is the vegetation?---That was one ofthe features that made us believe that the house wasdefendable, not a lot of vegetation. On our 21 and a halfacres, we had one tree. That was the pine tree just northof that dam. We had photinias along the road but theywere moisture content and it was deliberate that we hadthose and we believe that worked a bit. But, no, therewere some trees on the other side of Mullers Road oppositethe house, but not, as you say, much foliage at all.

Just to take you back, even though you might not want to go

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back there, just as to how you felt at the time or thoughtat the time. Noise; you haven't mentioned noise. Whatwas the noise like, or don't you remember?---I don'tconsciously recall any loud noise. Certainly ourneighbour at the top of the screen on the other side ofthe creek when the bergen went and his house survived, hesaid it sounded like a 747 200 feet above the house.

You had other things on your mind?---I guess there were, yes.What about light or darkness?---There was some smoke around,

but the light was fine.What about your capacity to think rationally?---Reasonable, but

not as good as it could have been. Busy doing things.I knew what I was doing. I knew what to try and do nextunder the circumstances. I didn't lose it, put it thatway.

You appear to be very sort of sound now. Do you think therehave been any psychological consequences?---No, I don'tthink so.

Would there have been signs that you actively defended, becauseobviously you very actively defended the house, but by thetime it had gone down, were there signs there that you hadactively defended it?---Well, the house was totallygutted, so I guess not. We had done as much clearing prethat day as was possible, so preparation in advance wasokay. We had been damping down the area around the housesince that morning, had it as damp as possible, but themoisture evaporated very quickly.

COMMISSIONER McLEOD: Your house presumably was set alight byembers?---No, I don't think so. I think it came from theradiant heat and then that fireball that came from thewest.

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The particular vulnerability about the house? You mentionedthe fascia boards caught alight. Did the fire get intothe ceiling or where do you think was the real source ofthe fire as it started to destroy the house?---The windowsand the fascia boards. No, I don't think any embers gotinside until the windows went.

DR LYON: If the Commission pleases, just in relation to thevegetation, if I can ask some questions about that?

CHAIRMAN: Yes, indeed.<CROSS-EXAMINED BY DR LYON:Mr Wiltshire, my name is Greg Lyon and I appear for the 77

municipal councils. I just want to ask you some questionsabout the vegetation aspect that you mentioned at thebeginning of your evidence. As we look at the map, youhave got it there and we see your house. I think you saidit is about 400 metres up to the top of the screen, is it,to the beginning of that vegetation? Is that what yousaid?---I didn't give any indication of distance there.Yes, it probably would be 300 to 400.

What we see is that it looks pretty green in the Google mapthere, but of course that can be taken at any time. Butit is basically pasture or grass between you and - --?---That's the trees lining the creek at the top of themap there, at the top of the screen.

Is that the bergen that you are referring to?---No, that'smainly gum trees.

Where is the bergen?---The bergen would be just off screen tothe top left, sort of in that area there in the top leftof the screen now. That's a vineyard at the top left atthe moment.

Where in relation to the vineyard?---Both sides and to the

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east, so the vineyard is virtually surrounded by bergen.Is any of that part of your land, Mr Wiltshire?---No, our land

finishes at the creek bordered by Mullers Road there inthe middle, slightly right of screen.

Do you understand bergen - I appreciate what you say about it,but do you understand it to be native vegetation?---Yes.

And that the native vegetation laws apply to removal of nativevegetation?---Unfortunately, yes.

But in any event it wasn't your land and you weren't in aposition to make any application to clear it?---That'scorrect.

Thank you. That was all I wanted to clear up. Thank you.MR RUSH: There is one matter, Commissioners.<RE-EXAMINED BY MR RUSH:You were asked questions. Did you have soaker hoses on around

the house during the course of the day?---Yes, we did.Well, all morning they were running, yes.

They are the matters, Commissioners.CHAIRMAN: Yes. Thank you, Mr Wiltshire. We appreciate you

giving evidence?---I hope it has been of some assistance.<(THE WITNESS WITHDREW)MS RICHARDS: I call mark Chladil.<MARK ADRIAN CHLADIL, affirmed and examined:CHAIRMAN: Take a seat, Mr Chladil.MS RICHARDS: Mr Chladil, could you please state your full

name?---Mark Adrian Chladil.You live in Hobart?---I do.At an address at the corner of Argyll and Melville

Streets?---That's where I work.You are the fire management planning officer of the Tasmanian

Fire Service?---Correct.

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You are here because you have represented the Tasmanian FireService on the rural land management group of AFAC, theAustralian Fire and Emergency Services AuthoritiesCouncil?---Very good, yes.

You have been a representative on that group since 1995?---Yes.More particularly, you have been one of two AFAC

representatives on the Standards Australia technicalcommittee FP20 since 2000?---Correct.

So your membership of that committee in fact predates that ofMr Eadie who was here this morning?---Yes.

Could I deal firstly with your formal qualifications. You havea Bachelor of Science with honours from the University ofTasmania?---Yes.

And at that time your interests were geography andzoology?---(Witness nods.)

You have worked in a range of teaching and research positionsbetween graduating and 1994?---(Witness nods.)

What were the range of your research and teachinginterests?---Mainly in the areas broadly of physicalgeography, so biogeography, climatology, soil science andsome applied aspects as well.

I'm reminded that you have made a statement, Mr Chladil, andI should tender it. You have made a statement with theassistance of AFAC's lawyers, and it has six attachments.You have a copy of it there with you?---I have thestatement.

The witness number of the statement is (WIT.7506.001.0001). Ithas six attachments. I tender that.

#EXHIBIT 174 - Witness statement of Mark Adrian Chladil(WIT.7506.001.0001).

MS RICHARDS: Back to your qualifications and your research

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interests, Mr Chladil. In addition to your science degreeyou have an advanced certificate in fire management fromthe New South Wales Fire Brigade?---Yes.

And a graduate diploma in environmental planning from theUniversity of Tasmania?---Correct.

You have attached a copy of your curriculum vitae as attachment1 and that contains details of your employment and alsoyour various publications?---(Witness nods.)

One of the publications that I draw attention to is a paperthat you co-authored with a Mr Ahern in 1999?---Yes.

"How far do bushfires penetrate urban areas"?---Yes.That's a significant publication in the bushfire risk

management area, is it not?---Yes, it's becomesignificant. It was done to fill or to meet a researchquestion.

To summarise, the finding that you and your co-author made wasthat 85 per cent of house losses in bushfires occur within100 metres of continuous vegetation?---That's correct.

So that 100 metre distance has become a measure for variousplanning and regulatory decisions that are made in boththe planning and the building areas?---Yes, that's true,but the 100 metres was already in use in some places. Infact, if you go back, it used to be four chains in oldmoney, 88, and the original research question was to seejust how effective the 100 metres was.

Your conclusion?---Eighty-five per cent of all bushfire losseshad occurred within the bush or within 100 metres of thebush. So it was seen as an appropriate risk acceptancelevel, if you like, but one which other people could arguefor a higher or lower level of risk if they chose, and thepaper presents a curve that shows the further away from

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the fire you get, the less likely you are to have a lossarising from the fire.

That 100 metre separation distance we in fact find reflected inthe 2009 edition of AS3959?---Correct.

You joined the Tasmanian Fire Service as a fire managementplanning officer in 1994?---Mm-hm.

Could you outline for us how your role developed or what yourrole initially was in the Tasmanian Fire Service and howit developed?---Okay. The original role was very muchdevoted to on ground fire management planning, if youlike, in the traditional sense of looking at assetprotection zones and strategic fuel reduction burning andso forth. There were changes within the organisationthrough time and more of my role became associated withdevelopment control. So, rather than coming along behindand managing a problem, actually preventing a problemthrough planning and development controls.

What does your role involve now?---My role now is really asbushfire science support for the organisation, soI maintain a suite of interests. Development control isone, fire weather climatology and fire behaviour isanother, and GIS mapping is a third string, if you like.

You are, among other things, the chief officer's delegate tothe Resource Planning and Development Commission inTasmania. What is that authority responsible for?---TheRPDC, as it is called in Tasmania, is the body responsiblefor the administration of the planning system. Itdetermines planning schemes, amendments to planningschemes, state policies and so forth. It is somewhat moreindependent than some of the other states' equivalentbodies where it is given direction by the minister. It

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then provides the minister with the answer rather than asuite of potentials that then can be chosen by theminister.

You mention in paragraph 9 of your statement that you arecurrently a member of an interdepartmental group reviewingthe Tasmanian planning and construction requirements inbushfire-prone areas. Before I move on to your AFAC roleand the development of FP20, I might just ask you now howis construction in bushfire-prone areas regulated inTasmania at present?---At present the regulation is notdone through the BCA. Any construction requirements thatare placed on a development at the moment come through asa negotiated planning outcome. Depending on theparticular planning scheme, if a development can't achieveappropriate setback distances, then it may have toincrease the level of construction that it's got becauseit hasn't got appropriate setbacks or separations.

Are there designated bushfire-prone areas in Tasmania atpresent?---No.

Why not?---They have never been supported because the 1999standard was not deemed acceptable.

You mentioned that there is a review in progress atpresent?---Yes.

At what stage is that review?---The review has concluded aninterim comment period. There was a three week briefcomment period to allow the community to have an initiallook at the review and that period of three weeksconcluded.

There was a consultation paper released - - -?---Yes, the paperwas a review. It was actually a formal document. Thatdocument now is being tidied up with a view to going to

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cabinet to have that paper and its contents then subjectto the full formal process of the RPDC and also amendmentsto the building regs.

The features of the proposals set out in the consultation paper- just bear with me. There are three main reforms thatare being considered, are there not?---Yes, reforms inthree areas.

The first is to define by regulation which parts of Tasmaniashould be considered as bushfire-prone areas?---Yes.

What is proposed in relation to designation of bushfire-proneareas?---Broadly it will be the pattern of whether theseareas are inside the bush or within 100 metres of thebush, but there is some finetuning which goes as much aspossible to harmonise that definition with that which isin section 2 of AS3959-2009.

Has the proposal developed to the level where it's clear howbushfire-prone areas will be designated?---I think so.I think the proposal states that building regulations willdeclare the areas and the planning declaration will be thesame, so the intent is that there will be one definitionof bushfire-prone area and it will apply to planning andbuilding.

I understand from what you say that that will be done at astate government level, the designation of bushfire-proneareas?---The definition will be done. There isnegotiation going on as to who will actually do the work.To be blunt, the bigger councils and councils with morecapacity will want to do their own mapping and the smallerrural councils would rather have the mapping done for thembecause it is a lot of money that they don't want tospend.

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So they are the two models that are being considered, it beingdone centrally or it being done by localgovernment?---Yes, I think it is just going to be acapacity thing, that if a council says we haven't got thecapacity to do it, then the state will pick it up to dothe first round of mapping.

I think you were here yesterday?---Mm-hm.You may have heard our Building Commissioner explain the way in

which we are designating bushfire-prone areas in Victoriaat present, which is that the whole state is effectively abushfire-fire prone area and there is a site-by-siteassessment undertaken by relevant building surveyors aspermits are sought?---Yes.

Has the group that you are on considered that as a model forTasmania?---It was considered. It's been put forwardseveral times, but the industry view and also I supposethe bureaucratic view is that we can do a better job thanthat, that we can find the places that definitely areoutside of bushfire-prone areas and flick them offstraight away, and that that will only leave the interfaceplus the bush.

CHAIRMAN: Can I just interpose here the question of what, inbroad terms, are the significant differences betweenTasmania and Victoria in terms of bushfire risk as you seethem? Too hard?---No, it is just long. If you arelooking at fuel complexes, there are virtually no fueltypes found in Victoria that we don't have in Tasmania.We have a fuel type you don't have; that's a thing calledbuttongrass. But in terms of the general mix of wetterforests with heavy fuels, dry forests with lighter fuels,scrubs, shrubs, heaths, grasslands and so forth, the mix

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is pretty much the same. So that's the fuel complex. Thearrangement is slightly different. We've got a lot moretopographic heterogeneity, lots of terrain, mountains andgullies and so forth, so that affects actual slopes andsite arrangements. The Victorian weather climatologicallyis more severe and we've got certain seasonal aspects thatour east coast gets summer rains and so forth which youdon't seem to get. So, I think all in all the fuels arethere. We have milder weather except in extreme events.We've had over 100 events in 1967, 1200 houses went, itwas about 110 to 120 FDI. So we can have the extremeweather, but the median weather or the 90th percentileweather is much lower in Tasmania and that affects therisk quite considerably because the fire conditions aregoing to be lower. So that's the hazard side of the risk.But as to the consequences side of the risk, that's aboutthe communities being different and how people are living.That's far too great a generalisation.

MS RICHARDS: You just mentioned community. Is thecommunity-based assessment of risk a consideration thatthe group that you are participating in took into accountin setting aside the site-by-site risk assessment modelthat has been followed here in Victoria?---It's definitelyconsidered a role for planning in Tasmania. In fact, theWMO model had very good points in terms of trying toidentify places where you would want to consider planningaspects before you get to individual buildings. It isonly through the planning process do we have a mechanismfor including the way communities are living and stoppingindividuals from dominating what goes on in a community.So it's really the only way forward, from that Tasmanian

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perspective.Now, there are two other areas of reform that are being

considered. One is implementing a uniform approach toconsidering the risk of bushfires in planningschemes?---Yes.

And the other is strategies for streamlining the bushfiremanagement planning process?---Yes. The uniform approachmeans a standard planning schedule will be provided forall planning schemes, so it's very similar to what you hadwith your WMO areas having a standard set of requirements.But allied to that will also be the adoption of thestandard into the building code in Tasmania because theareas will have been declared.

If I can ask you to take off your Tasmanian hat now and putyour AFAC hat on?---Right.

You refer in paragraph 13 of your statement to AFAC's positionthat the ability of a building to withstand a bushfiredepends on other steps that can be taken to mitigate therisk. What are those other steps that areimportant?---Well, what we are talking about is mitigationof bushfire attack, so we could just purely talk about thephysical outcome, which is separation from the fuel,management of the total amount of the fuel, changing ofthe structure of the fuel, and that would satisfy that.But there's also, if you like, the planning side of thingswhere you say what are the activities or the uses thatpeople are making of the ground? So, do we put schools inplaces that are going to be in a bushfire area? Do we putother facilities in places that might be at heightenedrisk, if they are going to have limited capacity? So it isnot just fuel management, although fuel management is

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ultimately what's going to set the upper limit on theactual bushfire attack.

So there are issues of fuel management, maintaining separation,but also use of the land and planning of how the land isused?---Yes.

And building controls fall within that whole picture?---Thereis a place for building control in that picture, yes.

You have attached to your statement a discussion paper asattachment 2 and it is, as I understand, still in draft.It is called "Habitable buildings in bushfire-prone areas"and there is a proposed new title for it, "Planning anddevelopment in bushfire-prone areas" and that is at(WIT.7506.001.0024). Do you have that?---I will go offthe screen.

If we can go to section 5 headed "AFAC principles", it is onwitness page 0028. Before I ask you to talk us throughthe principles that are set out there, could you justexplain the status of this document?---This document is atthis stage a draft discussion paper. It's really - it'son the way to being able to be used in a national way toinform the membership and to drive strategies forward toachieve it, so it's very preliminary in that sense. Itreally hasn't had a lot of time to mature while we've beendoing other things for the Royal Commission.

There's been something of an emphasis on warnings andcommunication, I understand?---Just slightly at themoment, and there's some fire weather coming too.

If we can go to the part dealing with AFAC principles?---Yes.It says that the principles are based on an overarching

hierarchy of control that guide planning and development.Can you explain the hierarchy of control, perhaps by

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reference to the diagram on the next page?---Yes.Hierarchy of controls of course is quite often used inother fields to talk about just ways of breaking thingsdown. The hierarchy that we are proposing to follow isto, from the highest possible level, try and manage theproblem out. So, at the landscape level we are talkingabout things like mapping of bushfire-prone areas, makingappropriate settlement strategy decisions and investments,and appropriate sort of zoning or declarations of futureintent for parcels of land. When you've got your, if youlike, land use strategy in place, you can then move intoyour development strategies and things like subdivisionsand even sort of broader town and precinct planning whereyou have the opportunity to design on-ground outcomes sothat the direct risk is minimised. So, for things almosttrivial, putting roads on the outside of towns that formpermanent breaks, making sure that land which is highlyvulnerable is going to be protected or covered off in someway, things that are fairly normal to town planning inprinciple. Then at that stage, when you go to develop theland for individuals and individuals occupy the land and,if you like, enjoy the land, then they have got most ofthe problems in fact designed away for them and they haveonly got to deal with the things that are on their groundand also within their personal control. One of the thingsthat occurs to a lot of people is that if you've got asmall parcel of land, you go to put a house on it and youhave to put all these large separation distances on it,where you are going to be over the boundary onto yourneighbour's land very quickly, you are sort of relying onthe good graces of someone else. So, several pieces of

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evidence that have been offered point to the mitigation ofthe fire attack and the broad landscape controls over whois where and what attack is going to be coming to themagain should be used as the major determinant for bushfiremitigation, rather than saying, "Look, we can have fireswalking all over the landscape and right up to yourbuilding and you've got a fireproof house and that's allyou need to do." So it is very much about trying to applythings in the broadest sense if possible and then workingdown. The final part of the hierarchy, I suppose, is whatthe individual does do with their parcel, how do theyenjoy their life, what are the things that they do, andhow much individual responsibility do they take and acceptfor managing their own hazards around them, so it goesright down to the individual.

And the building is at the third level down in that hierarchyof controls?---Yes.

The principles go through land use planning and part of that isthe identification of bushfire-prone land and an importantpart of that is identification that land is bushfire-proneor designated as bushfire-prone on planning certificatesor similar documents. Then there are a set of principlesset out both in relation to subdivisions and similarly inrelation to individual development. Perhaps if you couldjust go to the individual development one and outline whatAFAC, admittedly in a draft discussion paper, considersthat the principles for individual development inbushfire-prone areas should be?---Well, as you can see,the first three points, I mean the points are probably abit repetitive, but bear with me: Providing occupants withprotection from a bushfire in their surrounding area as

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well as providing a defendable space around the buildingsthemselves; providing separation between the hazard andthe buildings so that the building doesn't become directlyattacked by flame and radiation; ensuring that safe accessand egress is there for emergency services and others;maintaining the systems that are there by providing forongoing management; providing appropriate building designand construction; ensuring that utility services areadequate and available when needed; and the second lastpoint is about siting or avoiding sites where you aregoing to have worsened fire behaviour because of thetopography; and then also ensuring that all occupiersacknowledge their duty of care and deal with it.

I might just move forward to principle 5.7, which involvesencouraging owners of properties to upgrade and improvethe bushfire preparedness of existing buildings. What'sthe position that AFAC holds there?---It is an educativeand encouragement position. Clearly there's very littlelegislative capacity around the country to retrofit safetymeasures or to in fact - there's not enough resources togo around inspecting every single property and chasingpeople. We would nationally and of course locally wewould rather see people adopt safer practices anddemonstrate them by looking after their own hazards and,where they can, incrementally reducing the risk to theirbuildings.

And that may involve retrofitting, adding particular safetyfeatures to their buildings?---Yes. If you look at themodes of bushfire attack, ember attack of course is thedominant one and has been historically the dominant mode.There are a lot of relatively simple things you can do to

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retrofit ember proofing to a building. Things likechanging the flywire to a metal flywire from somethingthat will melt will give you good benefits for emberattack; sheeting or otherwise removing combustiblematerials close to the ground for where the horizontalmeets the vertical and other similar deposition areas.These things can very simply be done, possibly as part ofa renovation, and we take the view that if the populace issufficiently informed and has the information availableand has a culture of trying to improve their bushfiresafety, then they are more likely to want to do that thanto just be told by regulation that they will do that.

Put that discussion paper aside for the moment and I will takeyou to the subject of Australian standard 3959. Back toparagraph 15 in your statement. AS3959-1991, did youdevelop familiarity with this during your early years withthe Tasmanian Fire Service?---Yes.

Can you just explain for us briefly what its featureswere?---It was a construction standard. It was aboutproviding ember proofing for buildings. Because it wasonly dealing with ember proofing, it didn't even need toworry about site assessments or anything else. It justsaid, "If you want to be ember proof, here you go." WhenI first started, I commenced in 1994, that standard hadonly been picked up in the Building Code of Australia acouple of years earlier and that had only been applied inSouth Australia and Victoria at that stage. A couple ofcouncils in New South Wales - you know, there were a fewlocal government areas around Australia that were usingthe standard, but the actual uptake was minimal. Itlisted things to do to make ember proofing happen for

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walls, floors, fascias, roofs, underfloor spaces, servicesand pipes and doors, from memory.

Of course, we have learned that that standard was replaced by anew edition in 1999?---Yes.

You say in your statement that you were consulted by other fireagency representatives on the committee, BD64 at thatstage, about that standard. What was your view at thattime?---Well, somewhat naively, I suppose, but I thoughtif we were going to do it we should be doing it properly.So, being unaware of a lot of the background, when I andother people in the fire service looked at the drafts forthe 1999 standard, and this is back in 1997 we werelooking at the drafts, we couldn't work out why they wereso ordinary, if you like. So there was a lot ofcorrespondence and toing and froing about trying toimprove that 1999 standard before it actually camethrough. There were a whole range of things which youcould argue were wrong in terms of the site assessmentthat they used, the way things were classified, and justthe general language. But, as well as that, it didn'tdeal with the site planning and the water supplies and theaccess issues and the maintenance issues which we wereinterested in and by then had a fair idea that we neededto have in place. So, for example, in Tasmania andVictoria and New South Wales there were regulatory andadvisory documents produced by the fire services and byplanning commissions saying, "This is what you should doabout providing all these other features," but thestandard that we were asked to support didn't provide forthose things, so we felt that the standard wasn'tsupporting what we were trying to achieve.

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Although it would be said against you, Mr Chladil, that it's aconstruction standard, not a planning guideline orplanning policy?---I did use the word "naive". We didn'tfully appreciate, if you like, that construction meantthat it was only going to deal with issues which would becalled up in the Building Code of Australia. I don'tthink in those days it was as clear then as it is now,that that's how it goes, because I have been told therewere plenty of examples of where the building code pickedup only parts of standards and that other parts ofstandards were part of the standard but not part of thebuilding code.

But, notwithstanding your objection to the draft document thatyou were consulted about, the standard was published in1999?---Yes.

And perhaps as a price for your vociferous objection to it youwere nominated to be on the committee?---Correct.

You were appointed not long after the publication of the 1999edition?---Yes.

You are one of two AFAC representatives, the other being?---Atthe time it was Dr Noreen Krusel from CFA.

And more recently?---More recently Mr Ralph Smith from fire andemergency services in Western Australia.

When did that change of personnel take place?---About 12 monthsago, maybe longer. Perhaps 18 months ago.

You say in paragraph 23 of your statement that the meetings aresubject to robust and passionate debate as representativesof various interests pursue the interests of the partythey are representing?---Mm-hm.

And we have heard fairly extensive evidence from the StandardsAustralia witnesses about the very long period over which

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the 1999 edition was reviewed before the 2009 edition waspublished. I don't want to take you through all thathistory, but with the benefit of hindsight are there waysin which you think that the review might have been broughtto a more timely conclusion?---Well, I heard you ask thesame question of Mr Eadie.

I'm interested in all views?---Yes. With hindsight, I'm surewe could have done it faster if we had known how long itwas going to take. There were periods of almost 12 monthsbetween meetings at times, so the meeting scheduling couldhave been more aggressive. There certainly could havebeen the testing of consensus; for example, the wholebusiness of going out to new testing methods. There wereolder testing methods, so perhaps we could have put out arevised standard back in 2003 which would have beenhorrible to some people, but at least would have improvedon the 1999 one. So at some stage you need to get outwith documents because they are never going to be perfect.So, you open the current one and you find a typo on thesecond page. They're going to be there and that's noreason to not publish. So, perhaps we could have triedharder. Section 2 was substantially completed in2000/2001 in terms of going to the radiation levels anddistances and how we were going to approach the modelling.The modelling keeps refining all the time, but there wasan adequate modelling approach suggested back in 2000which would have gotten going on this. But at the sametime we are still looking at research published asrecently as this year on embers and gap sizes, so there'salways new science coming in.

There were two main points of contention among a whole range of

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issues, but one was the flame temperature that should beselected?---Mm-hm.

That was effectively taken off the committee's - taken awayfrom the committee by the Australian Building Codes Boardin April 2007, was it not?---Yes. It came to a head thatthe committee had a significant divide and because flametemperature is almost the prime input, the earliest inputin the whole modelling system, that it ultimatelydetermined - the choice of flame temperature ultimatelygave you the greatest variation in what setback distanceswould be and therefore what buildings would be required tomeet what levels. It has as big an influence as what firedanger index you choose, so it was an area where, at themeeting with the ABCB we had quite a few of the regulatorssaying, "No, you're the technician. You tell us whattemperature to use." We said, "Well, I can give you myopinion, but my colleague beside me will give you anotheropinion as to which one is appropriate, because it is notjust a peak temperature, it is about the appropriatenessof it." So they took that off us.

The other main sticking point was whether the standard ought toinclude deemed-to-satisfy solutions for the highest riskcategory, the flame zone?---Yes. That was more of anemergent issue through time, so it wasn't as much of anissue early on in the review process. Flame zone wasactually invented as a characterised place where buildingsshould not occur. So we are saying when you go aboveextreme, there is still going to be somewhere where youshouldn't be, and that's called the flame zone. Then theysaid, "Now you've characterised it, you can provide a DTS,thank you very much."

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When did that issue emerge in the chronology, roughly whatyear, if you can recall?---Around 2003 onwards and it wasa case - it was very much driven by the AustralianBuilding Codes Board who over-positioned that there willbe a deemed-to-satisfy if it can be built.

That issue in the end was taken away from the committee aswell, was it not, right at the very end?---The flame zoneissue?

Yes?---No, it is still going.There was a definite statement by the Australian Building Codes

Board that Mr Tucker told us about this morning that therewould be deemed-to-satisfy solutions in the flame zone inthe standard and the jurisdictions could decide forthemselves whether there - - -?---Yes, that's why it'sstill going, because rather than having a place called theflame zone where one shouldn't go and then jurisdictionsdeciding on an individual basis for exceptions, whatthey've done is they've said, "Well, you've now got aflame zone, so anybody can build in the flame zone becauseit is in the standard." And now we've got jurisdictionswho are saying, "We don't think it is sensible, for awhole range of community reasons, being required to makevariations to pull it out."

If that had been made clear early on, that what the regulatorswanted you to do was to do the best you could to prescribesolutions in the flame zone, but that they would decidewhether those deemed-to-satisfy solutions should bepermitted in the flame zone, that would have saved a greatdeal of discussion on the committee, would it not?---Yes,it certainly would have saved a lot of discussion.

You mention in paragraphs 24 and 25 of your statement the

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regulatory impact statement process that the AustralianBuilding Codes Board went through last year and in theearly part of this year. Were you aware that a finalregulatory impact statement was issued by the AustralianBuilding Codes Board on 16 February this year?---No.I have only become aware since I've done this statement.

You talk in paragraph 25 about your understanding of theassessment of cost effectiveness of the three differentflame temperatures that were under contemplation in theregulatory impact statement. Did it make an assessment ofthe relative benefits of each of those flametemperatures?---No, and it would have had great difficultydoing so and is fairly quiet on the subject of benefits.There is an assumed increase in benefits between the threetemperatures going from lower to higher, but it is notquantified. I actually perused Mr Donaldson's statementand noted he had made the same conclusion that it was allbased on the costs, not on the benefits.

AFAC made a submission to the Australian Building Codes Boardin response to the consultation draft of the RIS that wasissued in November last year and that's attachment 3 toyour statement?---Yes.

In that submission there is - sorry, I should ask: were you anauthor or the author of this submission?---I certainlydrafted part of it. I'm not sure if I did the top and thetail, just the contents.

In this submission there is an attempt to estimate the benefitsthat attach to each of the flame temperatures that wereunder consideration?---Yes.

And that I think appears at point 5 where there is the heading"Estimation of benefits through residual risk

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analysis"?---Yes.And it is (WIT.7506.001.0052), at the very bottom of that page

and going over to the next page?---Yes.On the next page, if we could just scroll down a little

further, there is a table where you have estimated theaverage annual loss for each of the three temperaturesthat were under consideration. Can you explain what thattable suggests?---This was an analysis that was done usingsome risk modelling software that uses an estimate of thelikely magnitude of an event, if it is a one in 50 event,one in 100 event and one in 150 event, and then looks atthe potential losses that you would get with those eventsoccurring if it's working. I cannot explain the detail ofit; it is not the sort of modelling I do. It was done byDr Tan from the RFS, but he claims it demonstrates or hecan show that it demonstrates that the total package interms of costs and losses is less when you actually gowith that middle temperature, the 1,090K, which is option3 there, rather than putting it at option 2 and leaving itin the middle, which would mean it's easier to follow.

To be clear, there were three temperatures underconsideration?---Yes.

The first was 910 kelvin, which is option 2; the second was1,000 kelvin, which was option 1; and then there's 1,090kelvin which is option 3?---The highest is 1,090, yes.

Essentially this risk modelling comes up with a result that thepotential loss for 1,090 kelvin is an order of magnitudeless than the preferred option, which is 1,000 kelvin.When I say preferred option, that's the option that hasbeen identified as preferred in the consultationdraft?---Yes, in his modelling. That was done

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independently, but that was his conclusion, yes.You go on in the next paragraphs of your statement, 26 through

to 28, to recount events that took place following thefires here in Victoria on 7 February. As I understand it,AFAC agreed to the proposal to publish the draft in thestate that it was in as an interim standard for Victoria,but then the matter proceeded to a ballot to finalise thedraft and AFAC voted against publication?---Not quite, forcompleteness. They actually had a ballot on the interimone and we voted yes on that ballot. I was actually hereworking on the fires and contacted and said, "What shouldwe do? Have you got any problems with this?" And wesaid, "No. We'll go with the interim. The Victorianrequest is quite clear." It was on the basis that it wouldonly be in place until the full standard came through.Then when balloted on the full standard, we voted no.

There was a meeting of FP20 on 25 February at which Mr Tuckercame and spoke to you all. Were you at thatmeeting?---Yes.

After that meeting it was clear that the standard would be putto a ballot?---Yes.

Attachment 5 to your statement is a bulletin from the chiefexecutive officer of AFAC. If we can bring that up, it is(WIT.7506.001.0059)?---Yes.

Do you have that? This was sent by the chief executive officerof AFAC to member agencies; is that correct?---Yes.

Some of the history is given. It is noted at point 4 on thesecond page that AFAC has lobbied against having the flamezone construction requirements in the body of thestandard, but that the majority of the standards committeedid not support the AFAC proposal. Then over the page

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under "Recommendations" on the next page, there are fourrecommendations made. Can you outline what thosewere?---Yes. Basically this was to ensure that all themembers were getting, if you like, consistent advicerather than through the press that the regulators beinformed that 1,090 was the preferred temperature; thatthe agencies had a very strong view about flame zone; andthat ideally, even if the standard goes through with flamezone in it, we should try and obtain a variation to thestandard in each of the states and territories thatdoesn't use the flame zone; and that with that informationthat we make sure that our state and territory buildingreps take those views to the Australian Building CodesBoard and that we were also sort of going to try and getsome support for a national approach to fixing some of theissues with flame zone construction.

But a key recommendation there is the second one, isn't it,that AFAC members pursue the building authorities withintheir jurisdiction to seek a variation to the BCA toexclude construction requirements in the flamezones?---It's key to the flame zone, but at that stage thetemperature issue hadn't been resolved either. So thefirst step was temperature, the second step was flamezone.

Yes, I'm sitting here knowing that the temperature issue wasresolved in favour of the AFAC position?---Yes. It hadn'tbeen at the time.

AFAC members, that includes the CFA here in Victoria, does itnot?---Yes.

Do you have any knowledge of the position that the CFA hastaken within Victorian government?---No.

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I will have to ask the CFA about that?---Yes. I know the viewsof certain CFA members, but I don't know whether they'vegot a whole of organisation position.

As you stated in your statement, you and the other AFACrepresentative recorded negative votes and the reasons forthose are given in attachment 6 to your statement?---Yes.

Can you just run through for us what your reasons were forvoting against publication of the standard?---I'm justgoing to have to find them here. Remembering that theissue of temperature was to some extent parked by theballot document, we basically said that the document wasunsuitable, it was unsuitable because it provided theflame zone contents because they are inappropriate; thatof course buildings should have defendable space and thatdefendable space can't be achieved if you are only havingthe separation distances that are provided for the higherBAL levels; that the deemed-to-satisfy provisionsbasically assert that there is equivalent safety for theoccupants as opposed to equivalent building performancefrom the very low exposures at BAL-12.5 or BAL-low up toBAL-40 and BAL-FZ. So, there is a difference betweenwhether the building will be all right and whether it issafe for the occupants to be there or not. There is infact at 1,090 substantial equivalence in terms of thenumber of metres of ground between BAL-FZ and BAL-40 andyou might wonder in terms of drafting a document whetherit is any point at all having slightly differentconstruction requirements that might only apply for a 10metre separation width; and that finally the testingregimes in 1530 part 8, parts 1 and 2, are very poorlysupported by scientific measurements of what happens in

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bushfires. So that was the basics.You have identified these issues in your statement and I will

take you to each of them now. You say in paragraph 29 ofyour statement that the most concerning aspect of the 2009standard is its provisions for the building of houses inthe flame zone, and of course there are two possible waysin which a house can be built in the flame zone. One isusing a deemed-to-satisfy solution, the other is with analternative solution designed for the site?---Yes.

I understand your concern is in relation to thedeemed-to-satisfy solutions that are set out in thestandard?---Yes.

Can you explain to the Commission why that is a matter of suchconcern for AFAC and its members?---The flame zone iswhere it is expected the building will be lit by flamesduring the bushfire, so this is because there is nil or atleast minimal separation between the edge of the bush andthe building. So, any occupiers will also be in the flamezone during the passage of the firefront. The occupierswon't be able to go outside the building to extinguish anyignitions for a reasonably long period of time, even afterthe bushfire front has passed, and this is because of theburn-out time of the fuel elements that are present.Burn-out time is dependent on mass and surface area tovolume ratio. A strand of grass will burn out in a matterof seconds, leaves and twigs take minutes, and logs andthings like sleepers take hours. While they're burningthey're radiating, so if you've got things close to thebuilding, they will be radiating. If that's the case, itwill be untenable for in effect a civilian to be outsideand do anything about preventing the ignition of the house

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from becoming serious. It also means that anybodyattempting to traverse ground in those high radiationlevels will be at serious risk of loss of life. Minimalseparation means no defendable space. You need asufficient width to be aware of the fire, to be able tosurveil the ground and see it coming and that can be quitedifficult in heavy fuels and forested fuels. You alsoneed to be able to get access to the different parts ofyour ground if you are actually going to try and put anyof it out. So defendable space and minimal separationdistances aren't the same; defendable space is wider.Because we are providing it deemed-to-satisfy, it impliesthat the safety levels for the structure are the same atBAL-12.5, BAL-19, BAL-29, BAL-40 and BAL-FZ because you'vegot a designed fire and you've got construction responses.So, if the system does work, then the building will be allright. But for the occupant, I believe that the safetyfor the occupant decreases as you go up higher up thelevels. The tests that we are using are works inprogress. We can talk about - in fact others want to talkin great detail about those tests. But what we are sayingat the moment is, "Trust us, these tests prove that thesebuildings are going to be okay." What it does is itnormalises putting buildings into flames. So you'resaying, "Don't worry, the next bushfire that comes alongyou are definitely going to have flames around your ears,but your building will be all right." I think that thatis a bit excessive for what the community expects ofbuilding regulation and building design. So, yes, I see arole for flame zone, for legacy developments, for infilldevelopment, for development where - perhaps for

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commercial developments where you don't even have to worryso much about passive protection. You can see a role forflame zone, but it shouldn't be normalised. It shouldn'tbe a normal way of people living or attempting to live.

You note in paragraph 34 of your statement that buildings notpermitted in floodways or on land slips, and anotherexample you have given to me in discussion is not belowthe high water mark?---Yes.

It is said on the other side of the argument, Mr Chladil, thatthe Housing Industry Association, for example, says thatif a construction problem is capable of quantification,then the solution to the problem should be available as aminimum standard, and others say that there is a communityinterest in there being prescribed deemed-to-satisfystandards because of the need for consistency and ayardstick for alternative solutions to be assessedagainst. What's your answer to that?---As generalprinciples, that's fine. But at one end you've justgot - you are coming too close to the edge. It is not anacceptable level of risk. It also pre-supposes thateverything has the same efficacy, that things will work.I don't think that that's the case at this time.

If I can move to some of the more particular difficulties thatyou have expressed with the standard - - -

COMMISSIONER PASCOE: Just before you move, given that thereare existing houses in some areas that would be classifiedas flame zones, would you consider a need to recommend ormandate that there be alternate protection e.g. bunkersfor residents in those areas?---That would depend on a lotof very detailed assessment. I don't think that mandatinga bunker is an option, whereas if we went through and did

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an analysis and the bunker was the only solution, thenrecommending it would be logical. But to put bunkers upas an alternate solution, if you like, I think would befairly fraught at this stage.

So for people who are currently living in an area that'sclassified as a flame zone, is there advice that can begiven to them?---I used legacy developments before andthat's bad jargon, I'm sorry. For existing situationswhere people want to improve themselves, the things thatare suggested in the standard at the high levels willobjectively improve their safety. I don't know how toquantify that, but I know it will improve what situationthey are in. Most of the situations that I'm aware ofwhere people are in the flame zone haven't got thecapacity to put a bunker into place. The block of groundis too small or it's all rock or the area that you wouldneed to clear to create the bunker, well, if you did it,that would actually probably shift the place from flamezone to a lower level of category anyway. So that's whyit would be ironic to see a building with lesserprotection than a bunker has got, unless there were sortof good reasons for doing that. I'm aware of a schoolthat's got sort of a country facility where children go,young adults go and experience a whole range of things.They have built a bunker as part of their overallintegrated strategy. So, there is a role, but whetherthat's a normal way and a way that people want to live, asopposed to mitigating the key issue, which is the bushfireattack, which is the vegetation, which is relativelystraightforward, I don't know that I would want torecommend keeping the trees in place and building bunkers.

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Just as a general point, do you see that there will be a needto effectively have two streams of advice, one for newconstructions and one for - you've called them legacyconstructions - but existing householders?---Yes, that'squite common in planning situations right around thecountry as we speak. It is also common in the buildingcode. If you have got, for example, a building that'sregarded as a heritage building, then you are not requiredto rip out all the old footings that don't comply withmodern requirements and so forth. So, that is a way weoperate already and we operate already for fire safetyrequirements that way. We also operate for infilldevelopment, so that, for example, quite often greenfieldsubdivisions have much higher development standards thansmall lot subdivisions that are in existing developedareas. So, the answer is yes, and it already happens.

MS RICHARDS: If I can move now to the subject of gaps. Youhave set out in your statement starting at paragraph 35I think two separate concerns that AFAC has in relation tothe prescription that is made in the new edition of thestandard in relation to gaps. One relates to the aperturesize in mesh that is prescribed. I'm not going to takeyou through that in detail. The other relates to what youset out in paragraph 40 where you say the 2009 standardallows gaps up to 3 millimetres or unspecified size ifsarking is used behind the gap. What issarking?---Sarking or sarking type material is a membranethat is generally used for vapour or thermal sealing ofthe building. It is not a fire protection feature.

It is typically what we see on half-constructed buildings; itis that blue paper with the silver - - -?---Or under a

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roof or behind cladding.And at one time bituminous paper was used as sarking?---It was

a favourite.The prescription in the standard to allow gaps of up to

3 millimetres has been described by Mr England in thereport that Mr Arnel produced and attached to hisstatement as an additional control that was not in the1999 standard. Is that your understanding of it?---In the1999 standard it mentions aperture size of 1.8 millimetresfor mesh and is silent, is not explicit on aperture sizesor gap sizes for anything else.

So, for example, between cladding - - -?---You know, where theweatherboards meet the door posts. The boards are neverperfectly cut straight. Even if they are, after a littlewhile they will warp and open up and so forth. So gapsare a fact of life. I naively assumed that 2 millimetreswas the gap that they wanted because it was mentioned.But Dr England points out that, yes, it is not mentionedso you could easily argue that, because it is notmentioned, you could do whatever you like within normalbuilding practice. So, to the extent that it wasn'texplicit and now that it is, that may be an additionalprotection.

What is the concern in relation to use of sarking behind gapsof unspecified size?---The sarking itself doesn'tnecessarily do anything about ember proofing. It may helpif it is there and it is sealed and it is joined up.Quite often sarking is put on by rolls or taped up so youactually have a consistent barrier underneath yourcladding. But as soon as the electrician comes along orthe plumber or anybody else and they poke a hole through

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it you actually have a gap. The argument that wasaccepted by the committee was, "Well, the sarking will bethere, so anything that gets in is going to have a long,convoluted path to get through even further into thebuilding." The longer the path, the more likely the emberis to burn out because the burn out time, whichI mentioned earlier, will come into play. So an emberthat arrives and is already out is just debris. So itdoesn't matter.

I think you mentioned that sarking is not fire-resistantmaterial; it is used for another purpose?---It is used foranother purpose and it is difficult in commercial practiceto know whether it is going to be highly effective ormoderately effective. The sarking in the 1999 standardwas specified as having a flammability index of no greaterthan 5, I think. So it said in the 1999 standard, "If youare going to use sarking, then it's got to have areasonable level of fire resistance."

Is that not specified in the new standard?---I don't think itis.

The next item of concern you identify is a valuation ofconstruction components. This is at paragraphs 44 throughto 46. I understand you there to be referring to the testmethods, AS1530 part 8.1 and 8.2?---Yes.

What is the concern there?---Ultimately it is, "Will it work;does it work", given that we have already heard Mr Eadiesay the test is there to give you reproducible outcomes sothat you can test different materials and know that theyare all being compared the same way. Ultimately, though,there has to be some linkage to what happens during abushfire, otherwise we could test it at a very low

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temperature and just say, "During the low temperature partof a bushfire it will work all right, but we don't knowabout the rest." There has been and is still very, very,very limited science on the output temperatures or theradiation fields that actually occur in bushfires in anysort of scientific, formal way. We are asking thequestion: is it worth taking the risk on modelled testsand modelled temperatures when we haven't seen themdemonstrated? That's the big picture. Within the detail,because it is a test, then for the purposes of the guyswho wrote the test they were happy to have the materialstested under fairly standard, dryness conditions of thematerials, so fairly standard laboratory temperatures andrelative humidities and so forth, whereas especially thescientists from CSIRO have argued that what we should bedoing is we should be drying all of this material rightout and warming it right up and then testing it becausethat's the sort of conditions that it's going to have toperform at.

So that's referred to as conditioning thematerial?---Conditioning of the samples, yes.

And the other concern you identify in paragraph 45 is that thetests don't consider the effects of wind on theperformance of the components?---Yes, and of course thisis very difficult to do. There are two aspects to thewind. Wind of course provides energy. So anything thatyou are doing you are actually adding energy to thesystem. Delivering wind, whether you are using a windtunnel or pipes of air or whatever, is going to bedifficult and hard to reproduce.

And is it fair to say that that difficulty in reproduction is

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the reason why it has been excluded from the test methodor do you just not know?---I think the people who wrotethe test are people who do radiation. They don't do otherthings. I think that's more the reason, but I'm sure youwill ask them.

Though it was put this morning that there was an AFACrepresentative on the committee that published the teststandard?---Yes, there was an AFAC representative.

So we can assume some understanding of fire behaviour at leaston the part of that representative?---Everyone has gottheir own understanding of fire behaviour. But the sortof issues we have been dealing with is when the guys whoare test gurus, if you like, are determining a test, thenthey say, "Our consensus in our committee is this theappropriate test to write." So that's what they did.

The next item of concern you identify is ongoingmaintenance?---Yes.

You say that AFAC is concerned that there are no provisions forthe ongoing maintenance of the design of a building. Isthat an appropriate matter for inclusion in a constructionstandard?---Well, it could be if you wanted it. We havestandards for other fire protection features like thehydrants and the sprinklers on the roof and fire testsystems and alarm systems. They all have maintenancerequirements. There is maintenance requirements for fireextinguishers. So it can be if it is so chosen by theregulators.

And the BCA provides for maintenance of fire safety systems inbuildings such as this, does it not?---Yes, it does.

And by what mechanism is that achieved?---It is done byregulation. For example, building owners have a

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certificate that certifies that they have tested all thesesystems and that they are appropriately maintained. Someplaces have annual statements of compliance and so forth.

One mechanism for imposing maintenance requirements might bespecifying conditions on an occupancy permit for abuilding?---Yes, that's been suggested.

Has AFAC given thought to how that might be enforced?---Well,there's a range of measures for enforcement. You couldhave a strict inspection regime, which would generatecareers for inspectors.

I can feel the MAV over my shoulder saying, "By whom would itbe enforced"?---Yes, that's right, and they could have arange of employers. But, quite seriously, if you look atthe range of models that are out there right now,municipalities do a lot of inspections of things. Butthere are also other agencies that do a lot ofinspections. So it is not necessarily either. But youcould have an inspection model. You could have just moreexplicit community based enforcement similar to the thingsthat Mr Arnel was talking about the other day where yousay, "Well, yes, you know you should do it," and you getpeople to comply.

Community education, information?---Yes, you could go theeducation and community norming model as opposed to astrict enforcement and punitive model.

Notwithstanding the concerns that you have identified, you dostate in paragraph 49 of your statement that there are anumber of areas in which the 2009 standard improves on the1999 standard?---Yes.

What are those areas?---Well, my favourite was the fact thatthey actually started assessing the slope that the fire

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was going to be burning on rather than the slope thebuilding was going to be sitting on. That was actuallypart of AFAC's submission in 1998. The application ofregionally appropriate weather conditions and thepotential to have combinations of fuel, fire model andweather is the thing that makes it appropriate to acontinent-wide standard.

So these were the various FDIs depending on the geographiclocation of the site?---Yes, the guts of section 2 is toallow it to be appropriate to the whole country ratherthan some one place somewhere in south-eastern Australia,which is what 1999 did. The other thing is the explicitquantitative links between the bushfire attack and whatyou are trying to build. At the end of the day you wantto know how much fire you are going to get and thereforewhat you need to be building for. So those are the majorsteps.

We have heard this morning that there's been one meeting ofFP20 since the standard was published?---I have been totwo, one in April and one in June. Having said that,I think Mr Eadie wasn't at the April one.

I'm told that's correct. We have heard that the committee hascommenced and nearly has completed a corrections amendmentto the standard?---There were apparently some 160 typosand other errors picked up from the published documentwhich has been submitted and we have been waiting any daynow to see.

After that corrections amendment has been dealt with, is ityour understanding that the committee will proceed to dealwith the 16 items that are listed in the preface as stillrequiring attention?---Well, I hope they do. AFAC has

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already made a submission on the need to includegrasslands and some consideration of what to do aboutgrasslands, which is a change from 1999. There are alsoissues to do with the other listed items in the frontthere, some of which are going to be more relevant thanothers. Things like log cabins and straw baleconstruction and so forth, they are there because, as muchas people like building the way they want to build, theycan't actually show how they perform during fires and theyneed to do some testing work or some assessment work oreven some standards work themselves. But there are otherthings like steel roof sections where you will see it is alisted item and that was put there at the behest of theInstitute of Engineers Australia because they were awarethat at higher levels steel, while it doesn't combust,does distort. So they were concerned about how steelroofs would be operating. So they have actually listedthat as an item. So some of those items have been broughtto the table by different bodies.

All right. One last matter I would like to touch on with youis the issue of bunkers, which we have already gone to tosome degree. Could we have on the screen, please, adocument which is (WIT.025.002.0084). It is attachment 8to the witness statement of John Gledhill, which isalready in evidence. It is an AFAC discussion paper onbushfire bunkers for residential homes. Is this adocument with which you are familiar?---Somewhat.

I see your name on the working group on the second page of thedocument. It was issued as a discussion paper at aroundthe same time as the other discussion paper to which wehave gone?---Mm-hm.

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It has the same status as the other discussion paper that youattach to your statement?---(Witness nods.)

There's a fair deal of introductory comment, but perhapsI could ask you to go to point 7, which is headed"Process", and it is on page 0101?---Yes.

That sets out, does it not, a suggested process for ahouseholder to work through in considering whether abunker is an option that they should implement?---Mm-hm.

Could you explain the process?---This is an attempt to put intoa chart how to conduct a risk assessment for a particularsite. This is a new way of doing if it for me because itis actually saying, "We've already got the building."Normally one would consider the site and say, "We will putthe building on the best part of the site" and so forth.So it is saying, "Have we got the home and is it compliantwith AS3959?" By saying that it would be, "To what extentis it compliant? Where are the weak points? Where arethe strong points?" In that way you can make an assessmentof its likely survivability. "Does it have sprinklers andspray systems?" These are, if you like, outside thestandard. So if you have them then they are going toimprove or hopefully they are going to improve theperformance of the building that you have alreadyassessed. Looking then, moving on to considering all thepotential solutions, the idea is to say, "Well, what isthe suite of options that the person has got here?" Don'tgo just straight for the bunker. The sort of potentialsolutions are: well, do you actually have another buildingthat is in a better condition to do the role of being aplace of safety rather than the house? To digress, ofcourse, I approved a commercial development where they had

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one building that was very, very, very highly specifiedand they had half a dozen buildings which had a wholerange of specifications literally down to a treehouse, andit was commercial accommodation for people who wanted tohave a bush experience. They had a bushfire run throughthe resort, if you like. The building of last resort wasin fact where the staff were, having taken all the peopleoff the site and so forth. So they had a range ofbuildings and they had actually gone to one that was morehighly spec'ed than the others. So the same thing can bedone in the domestic situation. It may also be donebetween neighbours. People talk about local relocation.So the next step is, okay, we have looked at all ouroptions and we are looking at then, "Okay, a bunker islikely to be the thing we are going to go with. So whatdo we need to do to have a bunker?" Then you turn thepage.

Is that where you go to point 9, "Issues forconsideration"?---It sure is.

What are the issues that should be taken into account?---Well,these are subject to change, but at this stage startingoff whether you actually have an effective fire plan; howare we going to activate that fire plan; what will we beusing for triggers and for information that will give uswarnings, indeed, to use the bunker; what does that meanfor the house and how are you interacting with that. Thelayout of the land will determine very much where thebunker will be, whether it is above or below ground orpartly both; under a mound or some such. Where on thelot? What are you going to do about engaging with yourlocal services and your service providers about the

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bunker? Of course this is done in ignorance of the BCAissue of underground bunkers not being classifiable,therefore not needing a building permit, but abovegroundbunkers probably requiring one. Mr Arnel did not pursuewhat you do with one that is half under the ground. Butit is worth considering, though, that you have gotsituations where, for example, during the fires I know ofa fellow who was using a shipping container as a bunkerand he was trapped inside it and a mate came and got himout because the mate came looking for him and waswandering around the site and decided to open thecontainer up to see what was inside. So we don't wantthat happening. The actual heat, and what we should alsohave there is the structural loading that the structurecan take. Pretty obviously it's going to be a differentbuilding if we talk about the fire resistance levels, likeMr Eadie was talking about this morning. If we aretalking about having two hours resistance to fire andretention of structural integrity for two hours as opposedto maybe four hours or six hours or eight hours, it'sgoing to make a big difference to what you end upbuilding. The volume, the volume for people, the wholeaspect of visitors, and also pets and how you are going toget the favourite two ponies into the thing if that's whatyou have got; you know, how are you going to deal withwhat you have in your life.

Are your neighbours going to come and seek refuge in thebunker?---Well, that's right. Will they invite themselvesalong and what other things are you going to take withyou. I mean, I can imagine there would be an awful lot ofphoto albums and wedding photos and jewellery and what

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have you getting jammed in there. Then that gets you tothe duration and the breathing air episode. I vaguelyheard somebody on the radio this morning claiming that hewas going to provide - this is on 774 -hermetically-sealed bunkers with a three-hour air supply.What happens at three hours and five minutes? Just what isplan B on this? But what is the breathing rate that peopleare going to be assumed to have? Once we start writingstandards, I think we will find it is a bit hard toquantify. Then, finally, you are getting into theamenities side of things. Do you bring power in on acable for a system that will fail anyway or do you just goon batteries? Do you have a portaloo in there or someother arrangements, and a decent water supply of course?

COMMISSIONER McLEOD: In what circumstances would you need tobuild a bunker that you could spend the weekend in, if itsprimary purpose is to provide last-resort protection atthe critical time of the passage of a bushfire?---I thinkthat's a really good question. What do you want thebunker to do? This first thing is ask a good question ifyou want to get a good answer. A lot of these things, ifyou actually only need something like what's beingproposed for a neighbourhood safer place, for example,somewhere that might well be uncomfortable but issurvivable - we have got people who have used adits formines and there were people at - where was I - Wandong,people sheltered under the crossover where the viaductwent underneath the highway, there were several familiesthere during the fire; what is the purpose of this bunker?

I think that is the question I'm asking you?---I think there isgoing to be a range of purposes. Different people are

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going to see it different ways, and I think some ways willbe valid and some won't. If the purpose of the bunker isto buy a solution because you are relatively well-off orotherwise and then not have to do any grounds maintenanceand not have to engage with the fire environment becauseyou have got your plan B, you are just going to go intothe bunker and it will all go past you, then I'm not surethat that's a particularly valid approach. But if you aregoing to prepare your dwelling and your family to the fullextent that you can and then you are going to install abunker so that you have the confidence to stay and you dothe business and defend, like we know some people did,then that seems eminently suitable. If people say theythink they need a bunker because they don't feelpsychologically robust enough to ride the fire and do whatthey need to do, then I think that's different to somebodywho says, "I'm just going to buy a bunker and I'm going toignore the fuel." There are two different jobs there.Did that answer the question?

I guess our focus to date anyway, and we haven't spent a lot oftime on bunkers, has been to see it as a last resortpossibly in a situation where, despite the best efforts ofpeople like yourself who prepare standards for buildinghouses in the high-risk zones, the standards fail or thelevel of protection fails and there is the need to gosomewhere else quickly. A bunker can serve the purpose ofbeing an emergency shelter that provides a kind ofprimitive level of protection built if it is created to acertain reasonable standard such that it is another stringin a person's bow?---That's a fair observation. One ofthe big issues with dealing with the Building Code of

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Australia is it is very difficult to have a bunker in thebuilding code because every habitable room has to havewindows and you have to have ventilation and you have tohave this and you have to have that; whereas if you aretalking about a bunker with the idea you have got or youexpressed, then you can say, "Well, maybe the concretetank in the ground will do that job."

There is a risk of overspecification which perhaps createsextra cost and reduces the possibility of the amenityexisting. Even though obviously the lower the standardfrom a building point of view perhaps the more risky itis, it is another option that may be better than to haveno option?---It may be, and in the retrofitting example itmay well be the case. We have got plenty of places inVictoria and Tasmania and New South Wales, for thatmatter, where the safest place to stay is at the propertybecause the roads are shocking and dangerous and that'swhere the fire will be, but the property is not going tobe good enough. So then what do you do? The answer maywell be what you have suggested in terms of the bunker.

Or, as our chairman reminds us on occasions, maybe a swimmingpool?---Yes.

CHAIRMAN: We have had the evidence of a Mr Brown who said thata blanket and a swimming pool, for the approximate cost ofa bunker, might be a much more effective remedy?---I cansee if you have a large enough swimming pool and it is aninground swimming pool, because we have had the case inthe Sydney 1994 bushfires of somebody who died in aswimming pool. But, you know, if it is an inground one sothat the radiation can only be coming from one directionand you have the temperature modified by the surrounding

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soils, yes, those sorts of things; and jumping in the damis a fairly traditional practice, if there is water in it.So I take the point that a bunker need not be a habitablebuilding in the sense of the BCA, but you have got thesituation where most of the places that I imagine peoplethink of having bunkers are going to be heavily treed andyou have got that situation where you are relying an awfullot on those trees not falling on the bunker or nototherwise damaging the bunker, if you are going to use itsafely, and that's where the structural ideas come in, orelse you remove those trees and then you don't need toworry so much about the structural loading of them.I have seen some polypropylene ideas suggested, and theywould have to be obviously buried quite a considerable waybefore you could be sure that the temperatures wouldn't berisky. That would be basically a plastic water tankburied.

MS RICHARDS: Just to finish off on the topic of bunkers, thereare a number of other considerations listed there:ceiling, visibility of external events so you can tellwhen it is safe to go out?---Yes.

The need for regular maintenance and inspection and, asMr Eadie said, not storing dangerous items in yourbunker?---Yes.

Issues about confined space and in particular issues abouthuman behaviour in confined space?---Yes.

Thank you. I have no further questions. The Commissioners mayhave some additional ones. But, if they do not, I havehad an indication from Ms McLeod for the Commonwealth thatshe has some questions for you.

COMMISSIONER PASCOE: I just have a general one, Mr Chladil.

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What would you say have been both the advantages and therisks of Victoria proceeding with the AS3959-2009 versionin March when it did?---With the interim version or do youmean the full version?

Proceeding with it as it has for the period until 2010?---Myknowledge on this may be imperfect in terms ofadministration. As I understand it, for the case of newdevelopment outside the bushfire impact area you have oneregime and for rebuilds of bushfire recovery you have gotthe wildfire management overlay not in operation; is thatcorrect?

The entire state has been designated?---Yes, but the wildfiremanagement overlay is in operation - - --

MS RICHARDS: That distinction applies in relation to planningcontrols but not in relation to building controls?---Yes.So the benefits of putting it on the way you have wouldseem to be that people can rapidly assess their sites andproceed to finding a building solution. The disadvantagewith that would seem to be that you have not given thepeople who are doing rebuilds the opportunity to have thefull gamut of planning issues considered for them. So,because it is not part of the regulatory framework now, itmay well be that they don't actually have the opportunityto make representations about improving the planning sideof the development. So I would think that it givesshort-term certainty on the decision making, but itdoesn't necessarily give you a long-term certainty on theoutcomes. To be blunt, rebuilding at the moment would besomewhat risky in each of these places without consideringthe range of siting, water supply, access, vegetationmanagement options as well as the building options.

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I would think there are going to be sites where inretrospect it will be seen as foolhardy to have rushed inand rebuilt in the same place without addressing theseissues. But there is obviously a social welfare concern.We have had the same issue in that other place whereI practice. I have led evidence that social welfareconcerns could have been dealt with in other ways by, forexample, appointing a building assessor for each familywho needed assistance to get their building over the line;they actually be provided with an individual person tohelp them. That would be better social welfare in thelonger term. It might have been a bit difficult toachieve in such a large-scale event, but it certainly mayhave been possible to include the planning considerationsat the same time. But that's only as a practitioner fromanother place.

MS RICHARDS: We have two options, I think. It is nearly 4.30.CHAIRMAN: How long do you anticipate you will be, Ms McLeod?MS McLEOD: I couldn't promise I would finish by 5. Of the two

options, I think I might be more efficient in the morning,but it is a matter for you.

CHAIRMAN: The difficulty is we have Mr Donaldson in themorning at 10.

MS RICHARDS: No, we have Mr Leonard scheduled at 10. We hadscheduled a late start tomorrow because we are going tohave Mr Donaldson at 3, and probably a late finish. Wehave a test of the videolink with Paris scheduled for5 o'clock in here. So we could go until 5 and perhaps wemight finish. I understand Ms Fox has nothing at thisstage. I'm sure Mr Chladil would be grateful to finishthis evening.

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CHAIRMAN: I gather Dr Lyon also wants to - - -DR LYON: The invitation was extended to me by my learned

friend's questions.MS McLEOD: May I suggest we deal with Dr Lyon and see what

time we get to. All I suggest is I might be more effectivein the morning in terms of timing, but I'm happy to go foras long as you are happy to sit.

MS RICHARDS: We could resume at 9.30 in the morning.CHAIRMAN: Perhaps if do Dr Lyon, if he is going to be

relatively shorter, and then start at 9.30 and try anddeal with the balance of the questions then. How long doyou expect you will be?

DR LYON: Only a few minutes, sir.CHAIRMAN: That's fine then.<CROSS-EXAMINED BY DR LYON:It just arises out of the reference to the MAV. Mr Chladil, my

name is Greg Lyon and I represent the 77 municipalcouncils. In your statement and in questions asked by mylearned friend Ms Richards you touched on the question ofongoing maintenance and conditions attaching to acertificate of occupancy?---I did.

It might be helpful if we try to understand when you aretalking about buildings in bushfire-prone areas andparticularly in high bushfire attack level areas, whatsort of conditions are you talking about being attached tothe certificate of occupancy?---I'm just talking about theefficiency and effectiveness of the materials that arelisted on the building certificate to start with. So ifyou have got to have screen-saving windows, you still haveto have them seven years down the track; all that stuff.

Because that comes to the next issue. What sort of frequency

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did you envisage, because if you have built a new house,the certificate of occupancy has been issued, you have theright gaps in the decking or the verandah and you have gotyour bronze screens, you have your shutters on place, youwould expect that for a period of time the building wouldmaintain a condition? So what sort of frequency ofmaintenance/inspections did you envisage?---I didn'tenvisage; I was asked to envisage. But obviously therange of time that you have got is fuel treatmentsobviously require annual, if not greater, inspection. Sothey are the separation distances. But, if you aretalking about the built elements, the ones that thebuilding surveyor, for example, is looking at, then theyprobably cover off on a two, five, seven year sort ofbasis. So it would very much depend on which bits thatyou want to come to grips with.

Whether you are talking about vegetation and planning issues orwhether you are talking about construction issues; is thatright?---Well, not quite because you are convenientlymissing the fact that the BAL level is determined by theseparation distances, and the building surveyor or theassessor, as Mr Arnel has put it, the person whooriginally goes and says, "Yes, that's 25 metres or27 metres," that distance has to be maintained, otherwisethe system is not going to work.

Believe me, I didn't try to conveniently miss it?---Yes.I just want to understand - - -?---But the general planning

concept is probably more frequent than the generalbuilding concept.

Okay. I understand that. Then the second aspect that flowsfrom the original proposition is this: you understand that

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in Victoria we have a dual system of buildingsurveyors?---Council and private, yes.

Municipal and building. In municipal districts where the workis handled by private building surveyors you have issuesarising as to who puts the conditions on and who would beresponsible for the inspection?---Look, I can't really sayhow it is going to work in Victoria because you have gotthe situation already for your commercial buildings inthose municipalities, so what are you doing there? I'msure every council works out the way it is comfortablewith dealing with these things in practice.

That was my next question. You don't actually have an informedinterest or informed view as to the inspectionaspect?---No.

One of the things I do want to ask you, though, is are yousuggesting as far as conditions go is it possible that youcould have uniform conditions so that, if you are buildingin a particular BAL, these conditions would automaticallyattach to the certificate of occupancy or are you sayingit should be a building by building, an individualassessment of conditions?---I think it should be that thebuilding that is approved is the building that is builtand that's the building that's maintained. So, if youlook at the BALs at the moment, they have got a whole pileof deemed-to-satisfy provisions in there. But if thebuilding surveyor comes in and then signs off on analternative, which of course they are quite welcome to do,then you can't say you have got to maintain something thatyou haven't built or haven't got.

The final thing is this: you understand that in Victoria at themoment we have got an occupier or land user onus for risk

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management?---Yes.So under section 40 of the Building Act an occupier must occupy

the building in compliance with the certificate ofoccupancy. If a planning permit is issued under 126 ofthe Planning and Environment Act it can't use the landcontrary to the permit that is issued?---Yes.

Is that sufficient? Is that satisfactory?---I don't think itis. We have got similar owner onuses or occupier onusesin most states. It is not sufficiently at the front ofpeople's minds as to be part of their day-to-day lives inmaintaining all their systems. Certainly that's why inthe commercial sphere they have annual certificates.

The annual certificates, though, are usually in relation tooperation of safety equipment, aren't they, things suchas, you know, whether the exit lights are on, firehydrants are in place and are working?---Yes, I was onlyputting that up as a potential model and to show it is nota show stopper. These things can be done in other ways .The preferable instrument for delivering this policy mightbe something else indeed, completely different, if we sitdown and start thinking about it. I'm not wedded to theidea of one particular inspection method or anything else.

Thank you. They are the matters, Mr Chladil.MS RICHARDS: I'm conscious that we have had this discussion

about what is the most convenient way of finishingMr Chladil's evidence without asking him about hisconvenience. Mr Chladil, is it possible for you to returntomorrow morning at 9.30 or would you prefer to try tofinish tonight?---I would prefer to try to finish tonight,but I'm at the Commissioners' pleasure.

MS RICHARDS: Just bearing in mind that we have a test at 5.

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Perhaps we could make the most of the time that we have.CHAIRMAN: I think we will sit on.MS RICHARDS: Because tomorrow is going to be a very long day.

I'm conscious of that.MS McLEOD: Someone may have to tug on my sleeve I think when

it gets to close to 5 o'clock.<CROSS-EXAMINED BY MS McLEOD:Mr Chladil, I appear for the Commonwealth. Can I ask you,

first, some questions of clarification that seemed to beunclear this morning, and I'm taking this from your AFACwebsite. AFAC is a not-for-profit body. It is the peakbody for public sector fire, land management and emergencyservice organisations in Australia; that's a correctstatement?---That sounds correct.

It is not a government entity as such, but there are a numberof state entities, amongst the membership, including ruralfire services?---There are.

And there are two Commonwealth entities amongst its membership,including Airservices Australia and Emergency ManagementAustralia?---I think there are more, but, yes, they aremembers.

As presently instructed, they are the current Commonwealthentities that are on your membership but, if some moreemerge, we will clarify the position. Sometimes in yourevidence you express a personal view and sometimes youexpress an AFAC view. In terms of your discussion aboutthe revisions to the 3959 standard, are you expressing apersonal view or an AFAC view or both?---Probably both.

May I explore with you for a moment your expertise. You saidthat you are a fire management planning officer with theTasmanian Fire Service and I understand, summarising your

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experience, that you have a background in geography,vegetation, management of fire-prone public landsincluding planned burnings, essentially planning issuesrather than building and construction issues?---That iscorrect.

You don't have any qualifications or experience in engineeringor construction?---No.

You mention a number of other interests that you have,including the fire mapping and I think there were someothers as well. But your experience in this areaessentially comes from your membership of the FP20committee for nine years as an AFAC representative?---Plusas a practitioner.

In the field. So your exposure to other practitioners?---Well,also as a regulator.

In Tasmania?---Yes.As a fire planning officer?---Yes.You would accept then that you personally would not be placed

to speak with authority on building and constructiondesign issues, except insofar as they interact withvegetation and things of that nature?---Well, I have beenaccepted as an expert witness in those areas.

In which areas, sorry?---In the areas of built responses tovegetation fire. But I don't seek recognition onengineering or construction issues.

I want to explore with you how the AFAC position developed andwhat stage it is at. This is the AFAC response to therevision of 3959. I just remind you you may not be awareof some of the evidence of Ms Brown when she came to giveevidence in June before the Commission. She said thatAFAC had a committee structure or a group dealing with

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community safety who alert AFAC to the need to form a viewon a new issue. Then it gets to the point of a discussionpaper. There is a long consultation process which maytake years. Eventually it goes to council forendorsement. Now, I have summarised what she said, butessentially she said there is no policy until endorsementby the AFAC Council; is that your understanding of theposition?---Until it goes to council, it is not an AFACposition because that is the AFAC, the council. But thegroups themselves form views which are the views of thegroups underneath the council.

What I want to do is distinguish between the views of thegroups and the views of AFAC. You took us to the bunkerstandard just a moment ago, the draft discussion, thepaper about bunkers?---Yes.

Sorry, I said "standard" but the draft discussion paper?---Yes.It appears that that draft discussion about bunkers has a

working group that works under it?---There is an ad hocworking group at the moment, yes.

Is there a working group that supports the draft discussionpaper on the revision of 3959?---No, there isn't.

So the AFAC position, as I understand it, on 3959 or buildingin bushfire-prone areas, is a draft discussion paper thatyou have produced, which is version 2.1, which I think isdated May of this year?---2009, yes.

So is that as far as it has got in terms of the AFAC position,a draft discussion paper?---No, because the two AFACrepresentatives on the FP20 committee provide meetingreports and briefing notes that go to the community safetygroup and the rural and land management group, and havedone for over a decade and longer.

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Yes?---And those groups, if you like, keep a running concernover the whole issue, and those papers are then providedto the AFAC Council so that they can see them. So what wehave is oversight in the absence of a developed positionpaper.

So what you would expect to see in the council minutes is thenoting of a report from one of those groups?---If it goesup from the relative group, or in fact just seeing it inthe particular group, the safety group or the rural landmanagement group.

So the AFAC Council would look at the minutes or other recordof discussions of their group and approve it or note itor - - -?---I can't say how AFAC Council works. I'm notat that lofty height.

Are you a member of the AFAC Council?---No, I am not.I notice Ms Brown is in the room?---I can explain that each of

the groups has a member of the council as a member of thegroup. So that a member of the AFAC Council is alsogenerally the chair of the rural and land managementgroup, so that there is continuity in the informationflow.

I presume it follows that if you are not a member of the AFACCouncil you don't attend those council meetings?---No.

How then are council positions, including endorsed positions,communicated to you as a member of a technicalcommittee?---Generally we get a letter or an email or atelephone call if there is an issue. But in all the timeI have been doing it I have never had a downwardscommunication, only an upwards one.

Just to be clear, the draft discussion paper that you haveproduced - this is 2.1 on the standard - has not proceeded

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since Ms Brown gave her evidence in June to a formalpolicy endorsed of the AFAC Council?---I'm not aware thatit has.

So what is the standing of that draft discussionpaper?---Exactly that. It is a draft discussion paper.

But that is the discussion paper that you and others on behalfof AFAC have spoken to in the public arena, isn'tit?---Well, only since it has existed, yes.

The formal position of AFAC as communicated to StandardsAustralia through the committees and others is throughyour response to the regulatory impact statement, ballotpapers and things of that nature?---The regulatory impactstatement of course isn't to Standards Australia. Theformal response is purely the ballot.

I'm sorry; you correctly corrected me there. That is of coursea response to the board?---Yes.

But that represents AFAC's formal response?---Yes, that iscertainly a formal response and that's why it was signedby the CEO.

I asked Ms Brown on the last occasion to provide any positionpaper or discussion paper concerning the amendment, andall we have got so far is this 2.1 version?---Theamendment? Which amendment?

Sorry, amendment to the standard 3959. This is one of myproblems in proceeding at this time of day?---You mean the2009 version?

Yes, I do?---Right.Would we see or would we expect to see in any council minutes

the endorsement or adoption of that draft discussionpaper?---I don't know. I don't know what's there to seebecause, like I said, I haven't seen council minutes. But

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when the discussion paper reaches the status of being aposition paper, then that will be on the AFAC website andfreely circulated.

Okay. So it would be safe to assume if there is nothing on thewebsite then there is no formal position paper that's beenadopted?---Yes.

COMMISSIONER PASCOE: Ms McLeod, the communication fromMs Brown to members following the voting on the AS3959 - --

MS McLEOD: The bulletin?COMMISSIONER PASCOE: Yes. I accept it is not a formal

communication but certainly one might take that as a viewof the organisation.

MS McLEOD: Yes, certainly, and that is a view that, as shesaid and as Mr Chladil said, was communicated to members;certainly. I'm just trying to explore the formality ofthe position that's reached and whether this is still in adraft form subject to further discussion or whether it hasreached a concluded view because of course, bearing inmind that the ballot and the response to the RIS processare what expresses formally the grounds for objection ofAFAC and others. So we need to ask Ms Brown or somebodyelse about council minutes; is that the long and short ofit?---I think so, yes.

We would expect to be looking at meetings between late 2008 andearly this year to see any discussion about thoseissues?---If they did discuss it in council.

Can I come to the FP20. You are a member of two representingAFAC on the committee?---Correct.

Other members of the FP20 include the building industry,obviously?---There are several building industry

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interests. Mr Eadie went through them all this morning.You say at paragraph 23 of your statement, if I can just ask

you to turn to that, that there is debate on thecommittee, and the building association's principalinterest in the development of standards is to ensurelowest cost impact on construction. We can ask thehousing industry and the master builders about that ofcourse, but they are also concerned, I suggest to you,with practicalities of construction, including buildingtolerances, availability of materials, constructionmethods and things of that nature?---Yes.

You note at paragraph 22 that the revisions to the standardthrough the committee are a work in progress from meetingto meeting. So there is a working version of the standardproduced, distributed each time there is a raft of agreedamendments?---Usually.

When you, on behalf of AFAC, support or oppose a particularrevision, can I ask you in the broadest sense whatinternal AFAC decision supports that stance ofyours?---Generally they have been notified in advance anda paper is put to the rural and land management group andthe community safety group saying that the issue has beenraised and that this is how we intend to deal with it anddo they endorse that or otherwise.

Is it the same in terms of your decision or the two membersrepresenting AFAC on that committee in the process ofcoming to decide how you vote on a ballot?---Pretty well,yes.

Would we expect to see that position documented in councilminutes as well or other communication?---I can't say.

What do you get? Is it just a phone call or a conversation from

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someone on council to tell you how to vote?---We normallyare delegated to vote and that's what we do. That's whatI said; we inform up.

But who prepares the actual ballot paper?---I do.Did you also prepare the ballot paper of the other AFAC member

who was voting?---No, he prepared his own.In terms of the consistency of those ballot papers, if they are

the same or substantially identical, does it suggest thatsomeone is preparing both?---No. It means we talk. It isnot a secret ballot.

I'm not suggesting it is. I'm just trying to understand theexchange of information?---We do exchange information andideas. You will in fact see that they are onlysubstantially in agreement; they are not identical.

If you look at paragraph 24 of your statement, you say in thelast sentence, this is the RIS process, "The RIS processconsiders submissions made to it, but the RIS document isnot amended or re-issued in response to the submissions."Are you aware that AFAC did make a submission in responseto the RIS? Were you involved in that process?---Yes,I was.

And that that submission was considered and a final RIS wasissued and made publicly available?---Yes, I justindicated earlier, two hours ago, that I found out aboutthat today.

So that statement there is not correct?---No, that's right.Mind you, it does accord with what the ABCB rep told us.

I'm sorry; you were told by somebody that the RIS document wasnot amended?---No, that the ABCB normally does not amendor reissue RISs after they have been done.

Did you consult with someone on the board before making this

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statement, did you?---No.The RIS process in this case, just so we are absolutely clear,

was re-issued in an amended form, wasn't it?---I have beentold that.

You talk about the AFAC response to the RIS, and that'sattachment 3 to your statement. It includes a couple ofappendices, appendix 2 concerning construction ofbuildings in bushfire-prone areas. In your response tothe RIS there are three issues, but they are essentiallyconcerning two issues. The first is costs of constructionfor lower BAL levels and the second is the issue, whichyou say is of more substance, making the technical casefor site assessment based on the flame temperature of1,090 kelvin?---Where are we?

Sorry; your attachment number 3. It is(WIT.7506.001.0047)?---Yes, my documents don't have thatnumbering.

Do you have attachment 3? It is a letter toMr Donaldson?---Yes.

Behind that is the supporting documentation. The issues youidentify in the letter to Mr Donaldson and in the actualsubmission, if I can invite you to look at the bottom ofthe first page - - -?---Sorry, I was in the conclusion.Yes.

One, costs of construction; 2, technical case for flametemperature of 1,090; and, 3, benefits based on theresidual risk of 1,090 option?---Yes.

You were just looking at the conclusion, I think?---Yes, I was.Which, to be fair to you, probably also talk about the use of

the BAL flame zone category without additionalmeasures?---Yes.

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So concerns about the use of the BAL fire zone anddeemed-to-satisfy solution?---Yes.

Although they are not mentioned up front. So perhaps threeissues, to be fair. At that stage the draft standard hadthree options concerning the flame temperature to bechosen?---Correct.

The consultation RIS expressed a preference initially for1,000 Kelvin but the board resolved to reference in therevised standard the flame temperature of 1,090, didn'tthey?---Correct.

As Ms Richards asked you and you agreed, that issue went awayessentially?---Yes.

So that left those two issues then of the costs of consultationand the building in the flame zone?---Okay, as you arereducing it, yes.

In summary?---Yes.Then we come to your ballot, which is attachment 6 to your

document?---Yes.I should deal with the bulletin first. I just skipped over

that. That's attachment 5?---Right.The bulletin to members which went on 26 February before the

ballot recommends that members adopt a certainposition?---Correct.

For the purpose of lobbying various other representatives onthe committee, is it?---On the Australian Building CodesBoard, yes.

And that the position, the recommendations again concern the1,090 flame temperature?---Yes.

And the construction requirements in the recommendations 1 and2?---Mm-hm.

So, just to be clear, that bulletin is something that members

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got in February, late February 2009?---Yes.Telling members what your concerns with the process or the

amendments to the standard were at that time?---Yes.And you said you sent out the bulletin so that members had -

was it consistency or understanding of AFAC's view?---Itwas to ensure that they had access to our views and thatthey were getting it in a consistent way.

So it was issued, I suggest, because there had been a number ofpublic statements made through the media in February 2009following the bushfires?---Yes.

About AFAC's views?---Both by AFAC and by other bodies.I'm just asking you about AFAC at the moment. The bell has

gone. I can pause there, because I was about to move onto the ballot. Perhaps if I can ask this question: didyou think it was necessary with the bulletin to clarifyexactly what AFAC's views were in terms of objections tothe proposed amendments to the standard?---No.

You don't in this bulletin mention a number of other mattersthat you raise in your witness statement, and we can cometo those tomorrow morning; but generally would you agreewith that proposition?---Yes, not in the bulletin.

Is that a convenient time?CHAIRMAN: Yes. How long do you think you will be?MS McLEOD: 15 minutes in the morning.CHAIRMAN: How long do you expect you will be?MS FOX: I don't at this stage have any questions.CHAIRMAN: Okay. How does that fit in with other arrangements?MS RICHARDS: We have Mr Leonard scheduled to come at 10. We

can finish by 10.CHAIRMAN: It looks like everybody is suffering a degree of

inconvenience.

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MS RICHARDS: We seem to have had the worst of both worlds; wefinish late this afternoon and we start early tomorrow.

CHAIRMAN: I understand that. But I think in all thecircumstances - - -

COMMISSIONER McLEOD: Is our witness available tomorrow; justconfirm that?

CHAIRMAN: I think he said that he would prefer not to be, buthe will be; is that right?

WITNESS: Anything is possible. Anything is possible.CHAIRMAN: Okay. We will resume at 9.30.<(THE WITNESS WITHDREW)ADJOURNED UNTIL WEDNESDAY, 26 AUGUST 2009 AT 9.30 AM

Documents

The attached transcript, while an accurate recording of evidence …royalcommission.vic.gov.au/getdoc/356fc760-7e4b-47b0... · 2017. 10. 18. · The attached transcript, while an