The Eternal Flame is now safe from the eternal vigilance of regulators. Amendments to the Bush Fire Act now make it clear that the flame at the Australian War Memorial can burn on without fear of extinguishment for being in breach of the Act on days of total fire ban.
And so too are carols by candlelight. The farce last year of having candles by torchlight need never be repeated.
Was legislation really necessary? Why could not have common sense prevailed? Would anyone seriously imagine that candles in the heavily watered Commonwealth Park posed a bushfire risk? And is it likely that the Eternal Flame would lick its way up Mount Ainslie?
The trouble is that the earlier legislation, like so much of its ilk, was drafted in a universally proscriptive way. Gone were the earlier legislative methods of making general exceptions for people behaving “”reasonably” or when it is “”just and equitable” to do so.
The blanket approach has often caused unintended consequences, but because the regulation has taken a blanket approach the only remedy has been to return to recut the blanket, to redraft the legislation.
Of course, legislators have been wary of providing for general exemptions because courts have applied them so liberally as to defeat the intention of the legislation.
In the case of fire bans, another element has been afoot. Some people in Canberra, bitter at the cancellation of a backyard barbecue have pointed to ceremonial fires at the Aboriginal embassy with a goose-and-gander argument. That in turn was met with a further goose-and-gander argument as people pointed to the ceremonial fire at the Australian War Memorial.
What next? Will the lighting of a cigarette or a citronella lamp constitute a breach of the ban?
The trouble is the legislature has been too busy trying to define the line instead of taking a leaf out of the book of the English judge Lord Denning who said that we can never define the line, but we can always tell on what side of it a particular case will fall.