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Blowing hot and cold
by Soharni Tennekoon

Summer’s on its way. And just as the weather picks up and we flock outdoors to our local beer gardens, a dark cloud looms over us. Is it smoke from our cigarettes? No. Ironically, it’s the potential lack thereof.

Those who relish the idea of a drink in one hand and a cigarette in the other, your days may be numbered. Following the recent contention between country club Dubbo RSL and the NSW Health Dept over what constitutes an “outdoor smoking area”, with a possible prosecution risk, Dubbo RSL has taken the matter to the Supreme Court for a clear definition.

While the Supreme Court deliberates, venues and smokers collectively hold their stale breath; a ruling in favour of NSW Health’s interpretation could mean trouble for venues across the state, leaving a gaggle of huffy puffers in its wake.

ClubsNSW Media Relations Manager Jeremy Bath maintains that like the vast majority of clubs, Dubbo RSL offers smokers a “partial roof” for protection from irksome weather: “You can’t expect smokers to willingly stand outside in an outdoor area that doesn’t have protection from the elements.”

Bath says, “The legislation is about protecting non-smokers from having to breathe in second-hand smoke, and I think they’ve got the situation pretty well handled as it is, and it doesn’t really require any changes.”

So what does the current smoking law state? According to NSW Health, ““Enclosed” means having a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed”. Smoking is only permitted outdoors in venues in an area not exceeding 25% of the total area.

And while Dubbo RSL and the like interpret the legislation to permit an outdoor covered area, NSW Health now deems any covered area as a breach of law. But why stress this in hindsight instead of when the law was being passed?

Surely, the very fact that there is room for interpretation means this is arguably a case of sloppy legislation rather than a breach of law. For instance, where do you draw the line of a “covered area”? At bus stops? Umbrellas?

Currently, the Supreme Court’s decision looks like it could go one of three ways: a ruling in favour of NSW Health with a Grandfather clause, which, Bath explains is that the new ruling would not apply retrospectively, thus saving venues with existing outdoor areas huge losses and a leg-up over any new competition.

Or, a ruling in favour of clubs, in which case scores of new venues could implement their own outdoor areas thanks to the safety of a clear definition.

Or, rather disastrously, the Supreme Court could rule in favour of NSW Health’s interpretation, sans a clause, which would mean months of reconstruction. With venues state-wide (including over 1400 clubs) having invested more than $422 million (in the past 2 years) in constructing outdoor areas, this would not be good news.

Not to mention the other potential repercussions: littering, noise and lack of custom. Smokers may choose to find a more smoker-friendly environment to drink instead – like friends' houses. Merely speculative at this point, but as a smoker myself it’s more than possible that I’d look into alternative locations.

And from a non-smoker’s standpoint, it may be off-putting to find a string of noisy, inebriated smokers hanging out on footpaths outside a venue. Something, Australian Hotels Association (AHA) Director, National Affairs Bill Healey says is already an issue despite the current availability of outdoor areas: “With the introduction of indoor smoking bans across Australia, smokers have been congregating on streets outside pubs – creating a range of new business challenges for pub owners, including cleaning up butt litter.”

While NSW Health stands firmly by its interpretation, it refuses to comment until a verdict is reached – which is expected in a month’s time.

Smoking is a contentious issue and it would be daft to argue that NSW Health’s intentions here aren’t above board – for it couldn’t get more respectable than the good of public health – but things get prickly when legislation is so vague that it’s left open to interpretation.

Smoking is still a legal activity and it seems the indoor smoking ban helped reach a compromise in protecting non-smokers from second-hand smoke. Whether to ban smoking in public places is an entirely different issue (and one that needs to be taken up with the Federal Government), so it would be grim to see clubs, pubs and other venues (and smokers) pay for what is arguably slipshod legislation. Let’s just hope it all blows over.