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2009 VICTORIAN BUSHFIRES ROYAL COMMISSION

Letters Patent issued 16th February 2009

SUBMISSIONS ON BEHALF OF CHRISTINE NIXON

Date of Document: 24th May 2010 Filed on behalf of: Christine Nixon Prepared by: Russell Kennedy Sol. code: 316 Solicitors Tel: (03) 9609 1555 Level 12, 469 La Trobe Street Fax: (03) 9609 1600 , Vic., 3000 Ref: VAH 303878-00001 DX 494 Melbourne Contact: Victor Harcourt Email: [email protected]

A. Introduction

1. These submissions are made on behalf of Christine Nixon in response to the submissions by Counsel Assisting the Royal Commission (the Commission) headed “Leadership, Emergency Management Co-ordination, Command and Control” dated 13th May 2010 (Submissions of Counsel Assisting).

B. Application for leave to appear

2. Application is made for leave to appear for Ms Nixon.

3. Counsel Assisting have submitted that the Commission should find that Ms Nixon attempted to mislead the Commission in an aspect of her evidence of 6th April

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2010 concerning her activities after 18:00 hours.1 The potential impact of such an allegation on Ms Nixon’s reputation is grave. Leave to appear should be granted to make submissions on this issue.

4. Counsel Assisting have also submitted that the Commission should find that Ms Nixon failed to discharge her responsibilities as State Co-ordinator of DISPLAN on 7th February 2009 in several respects.2 Again, the potential impact of such allegations on Ms Nixon is significant. Leave to appear to make submissions on these issues should also be granted. (As will be seen below, the submissions of counsel for the State of Victoria are adopted on these issues.)

5. It is submitted that the grant of leave to appear should extend to allowing counsel to supplement these submissions with oral argument.

C. Allegation of attempted misleading should not be entertained or accepted

(1) Introduction

6. Ms Nixon rejects the allegation that she attempted to mislead the Commission. In this branch of the submission, we shall advance first reasons why the allegation should not be entertained by the Commission at all and then reasons why the allegation should be rejected in any event.

(2) The allegation should not be entertained by the Commission

7. The Commission should not entertain the allegation that Ms Nixon attempted to mislead the Commission. There are at least four reasons.

1 Submissions of Counsel Assisting at [15.6]. 2 Submissions of Counsel Assisting at [15.7].

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8. First, the Commission’s terms of reference concern matters such as the causes and circumstances of the 2009 bushfires, the responses of various authorities to those fires and the responses by such authorities in the future. Those terms of reference do not extend to the question whether any witness attempted to mislead the Commission.

9. Secondly, whilst a Commission is entitled to accept or reject the whole or part of a witness’s evidence for the purposes of making findings about issues within the purview of its terms of reference, it is entirely another thing to go on and find that a witness has attempted to mislead the Commission. Such a finding is tantamount to a finding that the witness has committed a criminal offence.3 And all this despite the presumption of innocence, on the civil standard of proof4 and without an adequate opportunity to meet such an allegation. Even royal commissions or inquiries which, expressly by their terms of reference, are specifically designed to inquire into whether individuals might have breached the criminal law (such as was the case at the “AWB Inquiry”5) do not involve findings that the criminal law was breached by a person or witness. Rather, they simply involve findings as to whether there might have been a breach of the law and, if that possibility is found to exist, recommendations for further investigation by the proper authorities. Yet, here, without any authority to do so, Counsel Assisting leap those hurdles, cast themselves as a prosecuting authority and invite the Commission to cast itself as a tribunal of fact and law on a matter it was never set up to determine.

10. Thirdly, in view of the nature of the allegation and the absence of evidence supporting it (a matter dealt with below), the allegation should never have been

3 See, e.g., ss 18 and 141 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and s 314 of the Crimes Act 1958 (Vic). 4 Albeit that the level of satisfaction required would be affected by the principles laid down by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. See below.

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made.6 The Commission should not compound the error by entertaining a submission that should never have been made.

11. Fourthly, to submit that there should be a finding that Ms Nixon attempted to mislead the Commission is to invite a finding which is unnecessary to the Commission’s task. The Commission’s task is to make findings and recommendations pursuant to its terms of reference. There is no factual contest about what Ms Nixon did or did not do after 18:00 hours on 7th February 2009. Accordingly, it is wholly unnecessary to the performance of the Commission’s task to determine the allegation that Ms Nixon attempted to mislead the Commission. And, to emphasise even further the previous point, if such a finding is unnecessary to the Commission’s task, Counsel Assisting ought not to have made a submission inviting such a finding.

(3) The allegation should be rejected

(a) The allegation is denied, is offensive, is baseless and should be rejected 12. Ms Nixon has already denied, on oath, any intention to mislead the Commission.7 The allegation is as offensive as it is baseless. It should be rejected.

(b) What Ms Nixon said in her statement and in evidence on 6th April 2010 13. In her statement, Ms Nixon said that she left the IECC at approximately 6.00 p.m. and went home.8 She went on to say, “On my return home I continued to monitor the situation, maintaining phone and email contact. I also continued reviewing the

5 The “AWB Inquiry” is one of informal descriptions of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme conducted by the Honourable Terrence Cole AO RFD QC. See that inquiry’s website at http://www.oilforfoodinquiry.gov.au. 6 See, e.g., Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478 at [32]. 7 T 17680, 17701 & 17708. 8 Statement of Ms Nixon (which forms part of Exhibit 836 – WIT.3010.009.0377) at [44].

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BOM/CFA/DSE websites, TV and radio coverage”.9 In that statement there was no mention of dinner or a meal after she arrived home.

14. In her evidence on 6th April 2010, when asked whether she “devoted the whole evening” to monitoring the situation, she referred to having a meal in these terms: “No, I had a meal and then I went backwards and forwards”.10 There was no reference as to whether the meal was at home or elsewhere.

(c) The allegations made by Counsel Assisting during cross-examination 15. During cross-examination on 14th April 2010, Counsel Assisting put to Ms Nixon on five occasions that she had deliberately withheld the fact that she had a meal at the hotel from the Commission in her statement and in her evidence on 6th April 2010.11

16. The basis of the allegation of deliberately withholding made by Counsel Assisting varied in her questioning. It was put variously that Ms Nixon did not reveal the fact because: she did not want to reveal she had left home;12 it would have shown that she could not have monitored the situation as suggested in her statement;13 it would have been “productive of embarrassment”;14 it would have added to her embarrassment about being absent from the IECC.15

9 Statement of Ms Nixon at [46]. 10 T 17356. 11 T 17680, 17681, 17682, 17684 & 17708. 12 T 17680. 13 T 17681. 14 T 17682.13. 15 T 17684.7.

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17. It was also suggested to Ms Nixon that her phone was turned off during the period she was having a meal or during the period between 6:00 p.m. and 9:00 p.m.16 Ms Nixon described that suggestion as “a disgrace” and as an “abhorrent” idea.17

(d) The specific allegation made in the submissions of Counsel Assisting 18. The specific finding invited by Counsel Assisting in their submissions is that “Ms Nixon attempted to mislead when she gave evidence on 6th April 2010 concerning her activities after 18:00 on 7th February 2009 by concealing the fact that her ability to monitor events at a critical time on the day had been compromised”.18

19. Counsel Assisting in their submissions set out passages from Ms Nixon’s written statement and her evidence of 6th April 2010, compare them with aspects of her evidence of 14th April 2010 and then submit that her evidence on the first occasion was “incorrect and calculated to mislead”, that she “attempted to conceal the fact that her capacity to monitor events had been compromised during the period she was absent from home” and that her denial of an intention to mislead should be rejected.19 Counsel Assisting argue that the omission was calculated to leave the impression that she had “continuously” monitored the fires via the media of phone, radio, internet and television.20

20. In essence, the allegation of Counsel Assisting appears to be that, in her evidence of 6th April 2010, Ms Nixon intentionally gave the impression that she had access to the radio, internet, television and email continuously during the entire period after her departure from the IECC at 6:00 p.m., when in fact, during an 80-minute window within that period – namely, between 7:00 and 8:20 p.m. when she was at the hotel having dinner with three others – she did not have access to those forms of media but instead had only her mobile telephone. And this erroneous

16 T 17671.21, 17696.20 & 17704-17705. 17 T 17705. 18 Submissions of Counsel Assisting at [15.6]. 19 Submissions of Counsel Assisting at [10.166]-[10.178].

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impression, so the argument goes, was given deliberately on oath by Ms Nixon to the Commission in order to conceal the fact that she not been able “continuously to monitor” the fires during that 80-minute window.

21. The key passages in the evidence upon which Counsel Assisting rely are set out in their submission at [10.166]-[10.168]. But, for reasons that follow, those passages do not establish the allegation.

(e) Analysis of the evidence and the arguments of Counsel Assisting 22. Ms Nixon did not say she continuously monitored the fires by other forms of media: First, at no point in her evidence did Ms Nixon say that she continuously monitored the fires during the relevant period by use of radio, internet, television and email. The allegation of intentionally attempting to mislead is based on a premise raised by Counsel Assisting that Ms Nixon had given evidence that she “continuously” monitored the fires during the relevant period.21 This premise is wrong, as she did not say that she continuously monitored the fires. Rather, Ms Nixon said in her statement that, upon her return home, she “continued to monitor the situation”.22 But “continuing” to do something during the evening is different from continuously doing it. Any task or daily work can be continued during the day or evening, with breaks for meals or other needs. Indeed, the evidence of Ms Nixon on 6th April 2010 makes it clear that she took a break for dinner. There is no basis for the allegation of intentionally attempting to mislead. Even if Ms Nixon had used the word “continuously”, there would still have been no basis for making the allegation because during the time she was at the hotel she had her telephone with her. The evidence does not support an intention to mislead.

23. Ms Nixon did say she was available throughout the evening by telephone: Secondly, Ms Nixon did say, in answer to a specific question, that throughout the

20 Submissions of Counsel Assisting at [10.176]. 21 See Submissions of Counsel Assisting at [10.174] & [10.176] and T 17682. 22 Statement of Ms Nixon at [46]; Submissions of Counsel Assisting at [10.167].

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evening she was available by telephone, 23 which is the fact. The suggestion that her mobile telephone might have been turned off during her meal or between 6:00 and 9:00 p.m. has now been abandoned in light of subsequent evidence from Telstra.24 The allegation of attempting to mislead also should have been abandoned upon receipt of that information as it was by then obvious that there was no conceivable foundation for the allegation.

24. Ms Nixon said she did not have access to other forms of media whilst having a meal: Thirdly, in answer to a “multi-barrelled” question concerning her “capacity to monitor the situation” and whether the whole evening was devoted to that task or whether she was “otherwise engaged and just checking websites or emails”, Ms Nixon answered, “No, I had a meal and then I went backwards and forwards. I was obviously listening to the radio … and watching television and … other sources as well”.25 A fair reading of that answer in context, despite the difficulties inherent in doing so in view of the nature of question(s), is that Ms Nixon did not have access to other forms of media whilst she was having a meal.

25. Ms Nixon believed she could be and would be contacted by others if necessary: Fourthly, Ms Nixon made it clear in her evidence that she believed that other senior, capable people – in particular, Assistant Commissioner Fontana and Deputy Commissioner Walshe – were best placed to deal with matters in her absence.26 As Ms Nixon said on 14th April 2010:27

I in fact was available. I had good people in place to the do the job. … I was available on the telephone, I had people I knew felt confident to call me if they wanted to and if they’d wanted my support in any way would have asked for it.

23 T 17356; Submissions of Counsel Assisting at [10.168]. 24 Submissions of Counsel Assisting at [10.124]. 25 T 17356 (our emphasis); Submissions of Counsel Assisting at [10.168]. 26 See, e.g., T 17354, 17673 & 17709; Submissions of Counsel Assisting at [10.120] & [10.130]. It makes no difference to this point that Ms Nixon was mistaken about when she spoke to Deputy Commissioner Walshe or when he was to come on duty. 27 T 17709.

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26. So there it is: Ms Nixon believed senior, capable people were monitoring the matter and would contact her, and would be able to do so by mobile telephone, if it were thought necessary. In those circumstances, the allegation that Ms Nixon believed that she was not able “continuously to monitor” the situation whilst she was at the hotel when only in possession of a mobile telephone is simply unsustainable. The time taken to have a meal at the hotel is not demonstrably different from time taken to prepare and have the meal at home. There is nothing to support the allegation of attempting to intentionally mislead.

27. The asserted motive to mislead is destroyed by the acceptance of Ms Nixon’s belief that others were fulfilling her responsibilities: Fifthly, the very thing which Ms Nixon is criticised for elsewhere by Counsel Assisting – namely, a leadership style which relied on delegates to fulfil her responsibilities28 – puts the lie to the asserted motive for deliberately concealing a reduced access to media during the 80-minute period at the hotel. Counsel Assisting cannot have it both ways. They accept Ms Nixon’s belief that her delegates were fulfilling her responsibilities but do not recognise that the existence of that belief destroys the asserted motive for the alleged attempted concealment.

28. The cross-examination of Ms Nixon was unfair: Finally, something must be said about the nature of the cross-examination of Ms Nixon. It needs to be remembered that counsel cross-examining witnesses must do so within the accepted rules. These matters have recently been emphasised by the Court of Appeal in Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478, and also by the High Court in Libke v The Queen (2007) 230 CLR 559. In Libke, Heydon J made the point that compound questions containing more than one question may be ambiguous, confusing and unfair.29 His Honour also said that witnesses should not be cross-examined on the basis of the assumption of a fact in

28 See, e.g., Submissions of Counsel Assisting at [10.133]. 29 Libke v The Queen (2007) 230 CLR 559 at [127].

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controversy or on the assumption that they had testified to facts which they had not actually testified to.30 The Court of Appeal in Rees made the same point.31 The importance of the judgment in Rees was emphasised in a speech delivered by Warren CJ to the Judicial Conference of on 9th October 2009.

29. In this case, Counsel Assisting cross-examined32 on the assumption that the evidence was that Ms Nixon had said she had continuously monitored events, when she had not said that. Counsel Assisting have also persisted in making the assumption that Ms Nixon had said that she continuously monitored the situation in their submissions.33

30. The question asked at pages 17679.19-17680.14 of the transcript is a compound question running for almost an entire page of transcript. The question contains transcript references which jump from page to page, namely from page 17353 to page 17355 and to page 17356.

31. The allegation of deliberately misleading was put five times in cross-examination and has now been repeated in the submissions of Counsel Assisting. This is a profoundly serious allegation. In Rees, the Court said this about the duties of counsel: 34

An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel. … Where counsel alleges criminal conduct or some lesser but serious discreditable misconduct against a witness or party without a proper foundation to do so, counsel is in breach of that paramount duty, such conduct being viewed as an abuse of process for which counsel can be sanctioned.

30 Libke v The Queen (2007) 230 CLR 559 at [130]. 31 Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478 at [82]. 32 At T 17681-17682. 33 Submissions of Counsel Assisting at [10.176]. 34 Rees v Bailey Aluminium Products Pty Ltd & Anor (2008) 21 VR 478 at [32].

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32. In Rees, the Court held that there was no sufficient foundation for an allegation of fraudulent collusion between witnesses in circumstances where they had been seen talking together outside court, and it was said that one witness gave an unsatisfactory account of the conversation with the other witness.

33. In the present case, it is a fact that Ms Nixon did not mention leaving her home and eating a meal at the hotel in either her statement or in her evidence to the Commission on 6th April 2010. However, the fact that there was no such mention cannot, of itself, possibly provide a sufficient basis for counsel to make the grave allegation they made in cross-examination and now repeat in submissions.

34. There is no other piece of evidence which could possibly lay such a foundation. Indeed, the evidence of Ms Nixon on 6th April 2010 makes it clear she had dinner and that she was not saying she was during dinner monitoring things with all forms of media. The surrounding circumstances of the dinner also fail to lay the foundation. She walked to a nearby hotel for dinner and was home again in about 80 minutes. As Ms Nixon said in evidence, whether she prepared and ate the meal at home or had dinner at the hotel is not relevant. She had her phone with her and it is now conceded it was on. The time taken in going to the hotel for dinner is not obviously longer than preparing a meal at home, eating it and then cleaning up afterwards. Therefore no inference can be drawn which could support a factual foundation for intentionally misleading the Commission. The fluctuating bases for the allegation, referred to above, show that there is no firm foundation for the allegation. Similarly the other incorrect allegation (that the telephone was turned off) also demonstrates an allegation in search of a foundation which did not in fact exist.

(f) Allegation denied on oath

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35. As indicated above, in her sworn evidence on 14th April 2010, Ms Nixon denied any intention to mislead the Commission.35 There is no other direct evidence of Ms Nixon’s state of mind in giving the evidence impugned by Counsel Assisting. In those circumstances and in view of the foregoing analysis of her evidence, it is not open to conclude that Ms Nixon had an intention to mislead.

(g) Good character 36. Ms Nixon is a person of impeccable character. She should be accepted at her word. Evidence of good character is a matter going both to the credibility of a witness (and hence the acceptance of the witness’s denial of the allegation) and to the unlikelihood that the witness engaged in the behaviour alleged.36 If the Commission is considering making a finding against Ms Nixon, we should be alerted to that fact and given leave to adduce evidence of her good character and to make further submissions in that regard.

(h) Briginshaw principles applicable 37. Finally, given the nature of the allegation, the principles laid down by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 are applicable: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … [T]he nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. [Emphasis added; citations omitted.]

35 T 17680, 17701 & 17708. 36 See, e.g., R v Murphy (1985) 4 NSWLR 42 at 54; Melbourne v The Queen (1998) 198 CLR 1.

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38. The allegation here is grave – it is tantamount to an allegation of a crime – and the consequences flowing from it would be devastating to Ms Nixon’s reputation. Thus, in accordance with the principles in Briginshaw, weight must be given to the presumption of innocence. The same principles dictate that the Commission could not be satisfied of the allegation on “inexact proofs” or “indirect inferences”. Yet that is precisely the character of the case Counsel Assisting put against Ms Nixon. On all the evidence, it would be unreasonable to come to any conclusion adverse to Ms Nixon.

(i) Conclusion 39. The allegation must be rejected.

D. Ms Nixon’s responsibilities as State Co-ordinator of DISPLAN

(1) Introduction

40. Counsel Assisting have also submitted that the Commission should find that Ms Nixon failed to discharge her responsibilities as State Co-ordinator of DISPLAN on 7th February 2009 in several respects.37

(2) State’s submissions adopted

41. On these issues, we adopt the submissions of counsel for the State of Victoria headed “Leadership, Emergency Management Co-ordination, Command and Control” in general. In particular, in response to the criticisms of individuals generally and Ms Nixon in particular, see the State’s submissions at Part A, [2]- [5], and Part J, [55]-[61] and [64]-[73]. Further, in response to the allegation that Ms Nixon failed to discharge her responsibilities as State Co-ordinator of DISPLAN on 7th February 2009 in so far as she:

37 Submissions of Counsel Assisting at [15.7].

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(a) allegedly failed to seek to satisfy herself that had adequately discharged its co-ordination functions, particularly in relation to warnings,38 see the State’s submissions especially at Part K, [75]-[84]; (b) allegedly failed to obtain or seek out any information in relation to the major fires from any officer of Victoria Police between 18:00 and 21:00 hours,39 see the State’s submissions especially at Part K, [85]-[93]; (c) allegedly failed to ascertain whether Deputy Commission Walshe was present at the IECC or SERCC or otherwise available to discharge his duties as Deputy State Co-ordinator from 18:00 hours when she had departed,40 see the State’s submissions especially at Part K, [85]-[93]; (d) allegedly failed to provide the Co-ordinator in Chief or the Premier with any advice that the fires warranted consideration as to whether a declaration of a State of Disaster should be made under s 23 of the Emergency Management Act 1986 (Vic),41 see the State’s submissions especially at Part N; and (e) allegedly erroneously assumed that Assistant Commissioner Fontana was in receipt of a delegation of powers with respect to the role of State Co-ordinator of DISPLAN,42 see the State’s submissions, especially at Part K, [98].

(3) Additional points

42. In addition, we make the following points. It is submitted that the submissions of Counsel Assisting convey a wholly unrealistic view of leadership and emergency management. The flavour of the submissions is that Ms Nixon ought to have been “at her post” constantly on 7th February 2010. Doing just what, or precisely what her presence might have achieved, is not articulated. The highest it was put to Ms

38 Submissions of Counsel Assisting at [15.7(a)]. 39 Submissions of Counsel Assisting at [15.7(b)]. 40 Submissions of Counsel Assisting at [15.7(c)]. 41 Submissions of Counsel Assisting at [15.7(d)].

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Nixon in cross-examination by Counsel Assisting was that “it may have been better to be on deck, even if only to offer comfort, but be on deck to deal with matters as they unfolded throughout the night”.43

43. But, as Ms Nixon said, her task was not that of command and control but one of co-ordination and co-operation amongst agencies, which was standard practice for many years. She had faith in the people to whom she had delegated tasks, faith that they would go about their work appropriately.44 In her statement, Ms Penny Armytage sets out the history of Victoria’s emergency management system in recent years, which has reflected this co-operative approach amongst various agencies.45

44. In this context, it should be noted that Ms Nixon had very considerable experience at senior management level. She worked for over two decades in key leadership roles within the emergency services sector, from 1989 with Police as a nominated Chief Inspector, to 1994 as Assistant Commissioner of Police, reporting directly to the Commissioner, and from 2001 to 2009 as the Chief Commissioner of Victoria Police.

45. Her leadership and management capability has been developed and underpinned by formal studies in this area. In 1984, she was awarded a Harkness Fellowship of the Commonwealth Fund of New York and, with this, attended Harvard University to complete a Masters of Public Administration, where her focus was on policing leadership and general leadership. During this time, she also attended the elite American leadership centre, the Aspen Institute, to complete an Executive Management Course.

42 Submissions of Counsel Assisting at [15.7(e)]. 43 T 17374. 44 T 17370-17371, 17374, 17703 & 17709. 45 Statement of Penny Armytage, part of Exhibit 931 (WIT.3003.002).

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46. Ms Nixon has been presented with three Honorary Doctorates – from Monash University, the University of Ballarat and Wollongong University – and she has recently been invited to receive a fourth Honorary Doctorate from . In addition, she is a Fellow of the Australian Institute of Management, a Fellow of the Australian Institute of Police Management, a Fellow of the Institute of Public Administration Australia and a Fellow of the Australian and New Zealand School of Government (ANZSOG).

47. For some years now she has also been a lecturer by invitation at a number of professional institutions, where she speaks on a range of leadership and management topics. This has included lectures for the Williamson Community Leadership Program, a number of papers and regular presentations at Harvard University’s Kennedy School of Government in their Program in Criminal Justice, Policy and Management and their Executive Sessions on the future of policing in America, and an ongoing and long term role as a guest lecturer with ANZSOG.

48. Finally, when assessing the way in which individuals responded to the events of 7th February 2009, it must not be forgotten that the bushfires on that day were unprecedented in their scale and behaviour. Better is the approach that makes constructive suggestions for the future than an approach that is all too critical of responses to an unprecedented event of the past.

______Jim Kennan

______Michael Croucher

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