Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3382..
(2) Subsection (1) does not apply to-
(a) a fire lit in pursuant to section 5N;
(b) the lighting, maintenance or use of a fire in accordance with the manual;
(c) the lighting, maintenance or use of a prescribed class of fire;
(d) the lighting, maintenance or use of a fire in accordance with an exemption permit granted under 7B; or
(e) the maintenance of afire declared by the Minister under subsection (5) to be an exempt fire.
(2) The Fire Commissioner does not have the discretionary powers to override a total fire ban.
(3) The Fire Brigade would, in line with the Fire Brigade Act, extinguish or control any fire that is deemed to present a risk to life or property, however there is no requirement under the Bushfire Act compelling the Fire Brigade to extinguish a fire during a period of total fire ban. The lighting, maintenance or use of a non-exempt fire is an offence that may attract prosecution and is not a matter for the Fire Brigade.
The embassy fire was assessed at the time as not presenting a danger to life or property due to the following reasons:
The location of the Aboriginal Tent Embassy is on a cleared grassy site with an inground sprinkler system. The site is bordered by trees on two sides, a water fountain on one side and a road on the remaining side. The lawns are green and waterlogged. The risk of fire spread is minimal and the fires are less than 50cm. across, fuelled by twigs and leaves barely smouldering. Green leaves are used to create smoke making the fires appear worse than they are. No sparks are being produced by the fires and water for firefighting is readily available.
A backyard barbeque is not classed as a ceremonial fire under the Bushfire Act 1936, however it must be remembered that a gas or electric barbeque is permitted on days of total fire ban, with conditions. An open fired barbeque would not offer the same conditions or type of fire as the ceremonial fires present at the embassy.
(4) No cultural issues can be used to defy a total fire ban. Fires for ceremonial or commemorative purposes that comply with the requirements of the Bushfire Act 1936 however would not attract prosecution. An example of this is the Flame of Remembrance at the Australian War Memorial.
(5) The Bushfire Act 1936 is a public document.
(6) The Bushfire Act 1936, along with all other Acts and Regulations, are public documents and available to all members of the community.