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- 16 November 2004
Smoke-free Environment Amendment Bill
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Page: 12903
Second Reading
Debate resumed from 27 October.
Mr BARRY O'FARRELL (Ku-ring-gai—Deputy Leader of the Opposition) [7.30 p.m.]: Two members will lead for the Opposition on the Smoke-free Environment Amendment Bill, although I understand that the usual courtesies will be extended to only one of us. As the shadow Minister for Health, I will talk about the health aspects of the bill and the honourable member for Upper Hunter, the shadow Minister for Gaming and Racing, will talk about issues that affect his constituency. I accept up front and thank the Minister for Energy and Utilities, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer) for the briefing on the proposed amendments to the bill regarding starting dates and the vexed issue of the areas that will be covered by the legislation.
Mr Frank Sartor: During the transition period.
Mr BARRY O'FARRELL: Yes. As the second reading speech of the Minister for Health sets out, nobody can have any qualms about the goals of the legislation. Indeed, it is important to put on record the fact that, notwithstanding what various people say about the hotel and club industries in New South Wales, representatives of both industries indicated in briefings with the honourable member for Upper Hunter and myself that they clearly accepted the 2007 date imposed by the legislation. We must be clear and up front about the fact that neither Clubs New South Wales nor the Australian Hotels Association (New South Wales) attempted to do any sort of deal that would wheedle out of or put off the 2007 start date for a complete ban on smoking in pubs and clubs.
Nobody can have any doubts about the import of the legislation and its ultimate goal because of what might be termed the "evils" of passive smoking, which the Minister outlined in his second reading speech. As he made clear, numerous studies demonstrate the enormous harm done to people's health by environmental tobacco smoke—that is, exposure to other people's smoke, or what is usually called passive smoking. I worked as rail advisor to a former New South Wales Minister for Transport and, as such, was involved in devising the total ban on smoking under covered platforms across the CityRail network. Over the 15 or 16 years since that ban was introduced I have never understood why the occupational health and safety issues that drove the Greiner Government and CityRail to make that decision have not permeated other industries. I know from discussions with the many parties who have an interest in the legislation that there are various views about that. But the reality is that occupational health and safety claims and liability issues have not driven the elimination of smoking in other areas to the extent that was feared initially when the CityRail ban came in. The ban was quite radical at the time and many rail travellers still complain bitterly about it today.
At the outset of my contribution I acknowledge the role played by two important organisations, the Cancer Council and the Australian Medical Association (New South Wales), in lobbying for so very long for a solution in this area. I pay particular tribute to the President of the AMA in New South Wales, John Gullotta, for the vigour that he has brought to this task since his election. In October Dr Gollotta was instrumental in presenting to the Minister for Health (Cancer) letters from 400 New South Wales doctors calling for an end to smoking in pubs and clubs by the middle of next year and a petition, signed by more than 1,500 patients, supporting a prompt ban.
It is interesting to note that one of the factors that prompted the AMA to highlight its concerns about the impact of passive smoking was the experience of a great jazz violinist—someone whom many of us have heard play—George Washingmachine. He is a non-smoker but, like many musicians, performs regularly in pubs and clubs where smoking is a feature. A week prior to presenting the material to the Minister for Health, George Washingmachine used after one of his performances a kit from the United States of America designed to measure the levels of cotinine—a by-product of nicotine—in urine. It revealed that, after a couple of hours of performing, he registered two on a scale that went from zero to six and upon which a regular smoker would register three or more.
That is clear evidence—albeit through a ready-made, off-the-shelf kit—of the levels of nicotine and its by-products that people can absorb. The Minister referred to numerous scientific studies—34 since 1986—that demonstrate the adverse impact of passive smoking upon non-smokers and, indeed, on the spouse and children of smokers in some cases. I pay tribute to the Australian Medical Association, to Dr Andrew Penman of the Cancer Council, to ASH Australia [Action on Smoking and Health] and to the other groups that have lobbied to get to this goal for a long time. The only nice thing I will say to the Minister for Health is that he can be proud that he has managed to bring this issue to a head in a reasonably short time. I know that it has not been easy and that there are still tensions on all sides. However, in just over 18 months he has achieved what his predecessor could not achieve in the previous four years. However, that is not much of a compliment given the legacy left by the former Minister for Health in the entire health portfolio.
Regrettably, I am not convinced that all the Minister's claims about the legislation—in particular, the transitional arrangements—are as solid or sound as he suggests. Indeed, the Minister for Health indicated in an immodest way in his second reading speech that the plan had been carefully crafted to achieve 90 per cent of the health benefits from 1 July 2005. I understand that the transitional arrangements will be introduced from July 2005. I acknowledge that because of the day on which 1 July falls there will be an amendment in that regard. Further restrictions will also take effect from July 2006. There will be a complete smoking ban from 2007. I am sceptical because, notwithstanding the amendments that will be moved by the Minister, it may still be possible for there to be artificial divisions of single rooms, representing either 50 per cent or 25 per cent of the venue. They will be deemed to be non-smoking, but there will be no partition, barrier or extraction system in place.
As any non-smoker knows, and as the AMA has consistently said, patrons are being lulled into a false sense of security if they think no-smoking areas offer them safety from the harmful effects of second-hand smoke. There can still be significant exposure to passive smoking. For example, people could be sharing space that is artificially divided to meet the requirements of these provisions. The shadow Minister for Gaming and Racing will address those matters in more detail during his contribution to the debate.
[Interruption]
I accept that there has to be a reasonable balance. I infer from the Minister's interjection that he is not necessarily of the view that 90 per cent of the health benefits will kick in from 1 July 2005. The AMA is keen to achieve a total smoking ban. However, I question the 90 per cent claim, given the transitional arrangements. I accept—and I am happy to be on the record as accepting—that given the employment and business consequences for those involved in the industry there have to be transitional arrangements. Once again, I highlight the enormous gap between the rhetoric and the reality of what occurs under the Carr Government.
Mr Frank Sartor: Under-promise; no gap.
Mr BARRY O'FARRELL: I always wondered what the secret of the Minister's success was! The shadow Minister for Gaming and Racing and I come from different perspectives in the debate, but we are concerned that the definition of "outdoor area" will be determined by regulations under this legislation. From time to time, governments leave out significant factors that can have an important bearing on the way in which legislation will operate. If those things are ultimately determined by regulations, they are disallowable by either House of Parliament. The instances of disallowance of regulations under any government are very few. I would have preferred the definition of "outdoor area" and what is required in that regard to be contained within the body of this legislation. It would then be clear from the moment we vote on this legislation. The AMA and others want some certainty about what that means. Equally, owners of hotels, clubs and bars are keen to have certainty. It is a major and, no doubt, deliberate tactical flaw on behalf of the Government for it to have this matter decided by regulation.
Under the announced smoking regulations in Queensland there can be no smoking in alfresco dining areas. Those who are involved in health aspects and those who operate such areas need certainty. I have sat through many a function with Robert Goldman and Peter Doyle of the Restaurant and Caterers Association. I have had my enjoyment of the odd meal diminished by the vigour with which they have lobbied for a sensible outcome. I acknowledge that under this bill by July 2007 there will be equality between pubs, clubs and restaurants in relation to smoking. In that spirit, I pay tribute to pubs and clubs for what has been a significant voluntary Share the Air agreement, which they have signed. Share the Air saw licensed premises agree to ban smoking at counter areas, to make one bar non-smoking in multiple bar venues and to make one gambling or activity room non-smoking in multiroom venues with more than one room for each activity.
The way in which the industry has embraced the Share the Area agreement on a voluntary basis—as it has embraced other initiatives, such as the responsible service of alcohol—demonstrates that it is responsible. It receives very little credit in that regard. Given that it has been central to the debate, I hope the Government is correct in relation to the impact these measures will have on employment and investment in these two sectors. Notwithstanding my concerns about the health impact of smoking, this is a meritorious goal. The reality is that the Government is not, in any sense, offering to underwrite any negative impact that these provisions will have on those who own and/or operate clubs and hotels in the cities and towns of this State. Clearly, neither a club nor a hotel can operate unless it continues to be profitable. Clubs and hotels have argued consistently that these measures will strike at the heart of their profitability.
I accept that we now have sufficient examples from round the world of such bans being introduced, including in Ireland. I, for one, thought the Irish would never introduce a smoking ban, given the hotel culture in that country. I look forward to monitoring the experience in Ireland's hotels over this coming winter period and the precise impact that that legislation will have and also to get a sense of whether or not the Government of the Republic of Ireland seeks to enforce smoking bans within its hotels. I do not single out Ireland here, but at times there is a gap between governments that introduce legislation and regulations and those that introduce and enforce them. I hope the Government is right in its claims about the impact of this legislation upon those two sectors.
I will finish on two points. One is that, as the Government has reached the point of banning smoking indoors at licensed premises across this State from 1 July 2007, I hope we will not continue to see what appears to have started occurring; that is, local government entering the field to try to add its bells and whistles to this issue. It seems to me, as a member of this Parliament, that the Government having reached that point, with some difficulty between government, Parliament and industry, the intent and goals set for this legislation ought to be allowed to take effect without their being interfered with—
Mr Frank Sartor: Hear! Hear!
Mr BARRY O'FARRELL: I acknowledge the Minister's interjection—by either the City of Sydney or other tin-pot local councils around this town, including the Manly Council, now led by the former member for Manly in this place, Peter Macdonald. I have placed on the record of this place previously that that former member was very keen to ban smoking but was equally keen to decriminalise the use of marijuana within this community. I have never understood how Peter Macdonald rationalised the evils of ingesting cigarette smoke with his stated position in relation to the decriminalisation of marijuana. That is because, quite apart from the other health effects of marijuana in relation to schizophrenia, it clearly also has many of the evil impacts upon its users in relation to the ingestion of smoke.
I place on the record that having established, with great difficulty, a framework that clubs and hotels are prepared to sign up to, and that the restaurant industry has thankfully seen erected, that framework ought not be allowed to be undermined, pulled down or substantially renovated by the actions of local councillors across this town, whether they sit in this place as the Lord Mayor of Sydney or whether they sit across the shires, boroughs and hobbitsvilles of the rest of this city. I make that plea.
The final point on which I finish is one that all of us, as legislators, need to reflect upon. The act of smoking is not illegal. It is unhealthy, and it is unwise, but then so is overeating and excessive drinking. At the end of the day, people will make choices about the ways in which they live their lives. I say that in no sense to diminish my view about the meritorious goals established by this legislation from a health perspective and from a medical perspective. But the reality is that, as long as governments are prepared to allow tobacco to be legal, as long as governments are more than prepared to accept the taxes from the sale of tobacco products, whenever we come up with legislation like this—particularly at a Federal level, because the Federal Government is in charge of levying taxes upon tobacco since the High Court struck down this State's capacity to levy excise taxes—we will be charged with hypocrisy. That is a charge that we cannot escape.
The real debate that we ought to be having, given the enormous costs to the health system caused by tobacco smoking, is whether or not tobacco should remain a legal product in this country. I know that is a debate that will outrage many people, but all we have been doing for the past 20 years is treating the symptoms of a problem: on the one hand, we crack down on the right of smokers to exercise their free will to engage in the use of a lawful product, while at the same time slipping the hand out the back to take the proceeds of the tobacco revenues to be used for a variety of purposes. I make the point that there is no hypothecation in relation to all tobacco excise going into the health system—a concept of which the honourable member for Upper Hunter is a great advocate. I am very conscious of smokers' anger against politicians regarding this issue. I simply make the obvious point that, at the end of the day, we continue to treat the symptoms; we do not look at the underlying problem. Perhaps that does warrant us engaging in a debate in relation to tobacco. But I accept that those in the community who, like Peter Macdonald, have odd views on these issues will never be satisfied, and certainly will never happily engage in a debate that might seek to equate the evils of many of these drugs of addiction, as tobacco clearly is.
Ms ANGELA D'AMORE (Drummoyne) [7.56 p.m.]: I support the Smoke-free Environment Amendment Bill 2004. There has been a great deal of debate in relation to smoke-free environments in the community. The New South Wales Government has played an active role in advancing these issues. The New South Wales Tobacco Action Plan 2001-04 set out the Government's commitment to the prevention and reduction of tobacco-related harm. The most significant public health initiative undertaken by this Government to reduce community exposure to tobacco smoke has been the Smoke-free Environment Act. The Smoke-free Environment Act was introduced to ban smoking in most enclosed public places in New South Wales, including the dining areas of licensed premises.
A joint working group was convened in July 2002. It comprised industry representatives from the Australian Hotels Association, the Liquor, Hospitality and Miscellaneous Employees Union, Star City, Clubs New South Wales, the Department of Health, the Department of Gaming and Racing, WorkCover and the Restaurant and Caterers Association. The role of the joint working party was to consider the practical implications of reducing or eliminating smoking in licensed premises where smoking was still allowed. In late 2002 the working group agreed that a phased approach to introducing non-smoking areas in licensed premises was the most appropriate way to proceed, allowing sufficient time for cultural change to occur amongst hotel and club owners, patrons and staff.
The terms of the Share the Air Industry Working Group agreement were as follows. From 1 July 2003 smoking is no longer allowed at bar and counter areas in licensed venues. In addition a non-smoking area had to be designated in at least one bar area. From 1 July 2004, where more than one bar room exists in a licensed premise, one bar room is to be made non-smoking. This legislation puts in place further protections for clubs and hotels, their workers and patrons. From I July 2005, 50 per cent of the total area of all rooms in a club, hotel and nightclub must be set aside as a smoking area. From 1 July 2006 this will be reduced to 25 per cent, and from I July 2007 potentially there will be a total ban of indoor smoking areas.
Momentum regarding a ban on smoking in all indoor public areas is increasing. A coalition of Australian hospitality and entertainment unions has joined forces with the Australian Council of Trade Unions and non-government organisations to advocate for smoke-free workplaces. Entitled "Smoke-free Australia", this coalition estimates that as many as 25 to 30 per cent of workers are still exposed to environmental tobacco smoke. There is increasing community support for smoke-free licensed venues. The Cancer Council New South Wales has just released figures indicating that 92.1 per cent of people surveyed supported some form of smoking restriction in licensed clubs, and 90 per cent supported some form of smoking restriction in hotels.
I would like to thank Megan Lawson, who works with the Cancer Council New South Wales, for her hard work and lobbying in this area, and for her representations to me. The Australian Institute of Health and Welfare research, published in May 2002, indicated that the proportion of the Australian population who smoke daily is 19.5 per cent. On a State-by-State comparison New South Wales has the lowest daily smoking rate in the country of 18.5 per cent. The national drug strategy household survey and Newspoll of May 2004 reveal that the proportion of New South Wales residents who support a smoking ban in licensed premises rose from 41 per cent in 1993 to 62 per cent for clubs and 58 per cent for pubs in 2004.
Industry comment in the media on smoking bans often suggests that they have a negative effect on revenue. However, a comprehensive review of almost 100 studies on the economic impact of smoke-free policies in restaurants and bars, released early this year, found that non-smoking policies do not hurt businesses. It is an important point because the last thing the Government wants to do is place additional burdens on our clubs and pubs. In the year since New York banned smoking in licensed premises, jobs in licensed premises rose by 10,600, business tax receipts rose by 8.7 per cent and more bars opened, with an extra 234 liquor licences issued. The New South Wales Health survey in 2003 showed that if smoking were banned in pubs and clubs 23 per cent of people would go to pubs and clubs more frequently, 11 per cent would go less frequently and 66 percent would not change. Other States and nations have banned smoking in pubs and clubs already. Tasmania will ban smoking in pubs and clubs from January 2006 and Queensland will ban it from July 2006.
The Australian Capital Territory will have a complete ban on smoking in licensed premises by removing all exemptions under the current legislation by December 2006. The exemptions currently held by 80 licensed premises under ACT legislation will expire in December 2006. South Australia will ban smoking in pubs and clubs from October 2007. New Zealand banned smoking in December 2004. In several overseas jurisdictions a proposed or total ban is in place already. In California total smoking bans in pubs and clubs have been in effect since 1998, in Canada since 2001 and in New York since the beginning of this year. Ireland banned smoking in all workplaces, including pubs and clubs, from March 2004. Sweden has had similar bans in force since June 2005 Many people forget that clubs and pubs are also employers and, therefore, they have obligations under the Occupational Health and Safety Act. Trade unions have an obligation to ensure that their members are protected by the enforcement of these obligations under the Occupational Health and Safety Act.
In accordance with the objects of the Occupational Health and Safety Act, section 3 provides for an obligation to secure and promote the health, safety and welfare of people at work, and to protect people at a place of work against risks to health or safety arising out of the activities of a person's work. Under section 8 of the Occupational Health and Safety Act employers must ensure the health, safety and welfare at work of all employees of the employer. Such duty extends without limitation to ensuring that any premises controlled by the employer where the employees work are safe and without risk to health, ensuring that systems of work and the working environment of the employees are safe and without risks to health, and ensuring that people other than the employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
Section 26 of the Occupational Health and Safety Act specifies liabilities of directors and managers of corporations, and spells out clearly that individuals, such as managers, are liable for not protecting their workers in the workplace. In the case of an individual a manager could be fined up to $82,500 or imprisonment for two years, or both. The State Government has an obligation to lead in this area of the law because it reduces liabilities on pubs and clubs as employers while safeguarding their health and the lives of thousands of hospitality workers. There have been 20 successful Australian prosecutions for diseases caused by workplace smoking. I will refer to only three of them. Marlene Sharp, a Port Kembla bar worker, was awarded $468,000 after contracting cancer from the workplace. Alan O'Brien, a golf club worker who contracted emphysema from second-hand smoke at work, was awarded a payout of $36,500. Sean Carroll, a bus driver of 35 years, was awarded a payout of $65,000 after contracting lung cancer as result of being exposed to the tobacco smoke of passengers on his runs and co-workers in the tearoom.
Smoking is banned already in every other Australian workplace, including offices, government buildings, theatres, restaurants, schools and shopping centres, and public transport. The New South Wales Health Survey 2002 figures estimate that 21 per cent of the population over the age of 16 smoke. New South Wales has an annual tobacco death toll of more than 6,500 and lung cancer alone will claim more than 2,300 lives in New South Wales this year. Smoking is responsible for 54,000 hospital admissions every year and the health problems associated with smoking cost more than $150 million to treat. The health effects of prolonged exposure to smoking increases the risks of lung cancer and heart disease, as well as the incidence of sore throats, nasal symptoms, asthma attacks and other chest illnesses. The legislation will go a long way to protecting hospitality workers, employers and patrons while introducing amendments that reflect community views. What was acceptable 20 or even 10 years ago is no longer the current community standard. I commend the bill to the House.
Mr GEORGE SOURIS (Upper Hunter) [8.05 p.m.]: I am pleased to have the opportunity to speak on the Smoke-free Environment Bill in conjunction with my colleague the shadow Minister for Health. The Government has presented amendments without the prior knowledge of the Opposition and without prior exposure. It will take the Opposition some time to consider these amendments. Consequently the considered reaction of the Opposition may not emerge until the bill reaches the other place. Therefore I cannot indicate whether the Opposition will support the amendments. I note that amendment No. 14 grants the Minister a discretion subject to also unseen regulations. It is a double blank cheque. The bill is blank cheque enough, but—
Mr Frank Sartor: Which section are you referring to?
Mr GEORGE SOURIS: Amendment No. 14. I do not know the section. I think it is 11B. My initial reaction would be that the amendment requires even greater trust until ultimately the regulations appear.
Mr Frank Sartor: Do you want me to approve fewer exemptions or more exemptions?
Mr GEORGE SOURIS: We just want to see the exemptions. I will tell the Minister in a moment. If he pays attention he will get the full impact of my contribution. The legislation comprises a number of incomplete parts and loose ends. It seems far too keen on the self-fulfilling wisdom of the rhetoric that has been accompanying it for some days. As my colleague has mentioned, the smoking legislation in Ireland has had a deleterious impact, and with the forthcoming winter it may prove to be even more disastrous. New Zealand is approaching implementation of its smoking bans, and Victoria and Queensland have varying degrees of legislation concurrent with New South Wales. However, New South Wales is set apart from other countries and States because a significant area of licensed premises is set aside for gaming. It is gaming, not food or beverages, that enables hotels and clubs to provide low-cost meals, light entertainment, reasonably priced beverages, and support and sponsorship for a multitude of sporting, community and charitable organisations. The bill will be a serious impediment to hotels and clubs continuing those services. It will be expensive to comply with, it will result in significant lower patronage revenue, and it will be of great inconvenience to many patrons.
The observation has already been made that although smoking in Australia and in the rest of the world is legal—at least it was the last time I checked—smokers may rightly believe that there is an element of persecution in this legislation. I am concerned that the bill will drive smokers and drinkers out onto the streets and into dangerous situations created by narrow footpaths or busy roads and highways that may adjoin licensed premises. During peak trading nights, such as Friday and Saturday nights, I believe the situation could be very dangerous indeed.
The commencement date of this legislation literally was in the middle of New Year's Eve celebrations on 1 January 2005, and even those in dark slinky uniforms at the Sydney Opera House would have had compliance problems. The proposed change of the commencement date from 1 January 2005 to 3 January 2005 is welcomed, but implementation at that early stage allows only a very short period for clubs and hotels to adjust to the role they will play as a result of this legislation. Even though 2 July 2007 is the date of implementation for the schedule 1 [13] provisions, that represents a very short implementation time frame. I agree with representatives of clubs and hotels who have expressed concern over the unreasonableness of such a short period of implementation. They argued for a slightly longer period, up to 2009.
The shadow Minister has dealt with the inadequacy of the definitions in the bill and the Government's unwillingness to provide appropriate definitions for certain aspects of it. The Government proposes to move an amendment to schedule 1 [4], proposed section 11A (2) (d), to substitute an area for a room that will not be set aside as an exempt area. That amendment may have serious implications for small hotels, but I have had insufficient time to seriously consider the proposal and consult with industry representatives. It may or may not be a good amendment; I do not know.
Mr Frank Sartor: It is a good amendment.
Mr GEORGE SOURIS: I have not had sufficient time to consider its implications, but I hope the Minister intends to adopt a reasonable approach to this legislation. The most significant problem with this legislation is that it provides the current Premier and future premiers, as well as this Minister and future ministers, with carte blanche control of the industry through regulations and the readily adjustable nature of delegated legislation. The Government has had sufficient time to incorporate its intentions in legislative provisions rather than in regulations. It is quite unfair of the Government to say that the regulations will address many issues that the Government is not prepared to put forward as draft regulations. The Government has had since the 2003 State election to promulgate its intentions through a white paper on the bill and a draft of its accompanying regulations. It is not a good approach for legislators to adopt when legislation is passed despite the fact that they know that much of the important detail will be incorporated in regulations.
Generally speaking, the preparation of this legislation has been marked by a lack of consultation. Clubs New South Wales and the Australian Hotels Association became aware of the Minister's grand plan through well-intentioned second and third parties interstate. The President of the Australian Hotels Association was attending the national hotels association conference interstate, but the Government was not prepared to wait until he returned so that face-to-face consultation could take place. Clubs New South Wales was informed by its Victorian counterparts on the morning of the Minister's announcement. If the Minister is intent on legislating in such a dramatic fashion as represented by the bill, this is really not the way to go about it. He should have engaged in more widespread and more respectful consultation.
The argument has been advanced that gamblers and smokers will be replaced by environmentally sensitive non-smoking fine diners and that clubs and hotels will be better off financially, but that is really a daydream. Even if some increase occurs in dining patronage, that will not replace lost patronage associated with other parts of licensed premises, and that is undoubtedly the fact. The net result will be that there will be less viable licensed premises, lower employment, lower turnover and even lower revenue from gaming taxes. All these consequences should be considered in the context of other policies that the Government outlined in the budget that will result in a rapid escalation in rates of taxation in seven successive steps, coinciding with the implementation of the Smoke-free Environment Amendment Bill.
In recent times the clubs and hotel industry has had to endure heavy pressure from a plethora of legislation. Scarcely a week has passed without some form of legislation affecting the industry being presented to the House or being discussed in a white paper. For example, tonight I will be speaking not only to this bill but also to a bill concerning TABCORP's central monitoring regime, which is highly applicable to the clubs and hotel industry. Other two particularly draconian pieces of legislation involve clubs and governance. The first bill was introduced in November 2003, received assent in April 2004 and recently commenced its operation. Another bill, which was produced suddenly in recent times, has been passed by the lower House and awaits debate in the upper House. For the time being, the Government appears to have withdrawn that bill, and no wonder: It was very draconian and involved retrospectivity, the denial of natural justice, shifting of goal posts for the inquiry concerning the Panthers Rugby League Club, overriding the Freedom of Information Act, negation of the protection against self-incrimination provisions of the Registered Clubs Act, and a number of other issues, including financial aspects associated with departmental investigations.
I am very pleased to say that the prospect of the Government losing the vote on that very serious legislation forced it to withdraw the legislation, at least in the short term, to avoid severe embarrassment. However, that bill is a good example of how far the Government has been prepared to go to apply pressure to the licensed clubs and hotels industry. The exemption extended to Star City's VIP room is supported by the Opposition and is in line with similar provisions applying to VIP rooms interstate and overseas.
Tourism is the issue in relation to VIP rooms, and I have no doubt that particular overseas patrons would have patronised other casinos interstate and overseas if New South Wales legislation proved to be out of step. However, the bill will certainly drive many smokers into the arms of liquor stores and supermarket chains. As a result of the bill, cigarette smoking will occur more frequently in non-licensed premises and areas such as parks and private homes. This legislation may not have any impact on the overall incidence of smoking, but time will tell. As if all the foregoing problems with this legislation were not enough, the worst aspect of it will be its effect on small clubs. [Extension of time agreed to.]
The worst problem will be the effect on small clubs. I have prepared some remarks, but I now have seen an amendment that affects those remarks. There is an altogether different issue for the small hotels, which are mostly in country and metropolitan suburban areas. That problem is the size of the hotel, irrespective of its geographical location. Because of their small size they would have found it virtually impossible to implement this legislation in the phases initially drafted. I will reserve the Opposition's view, having had a moment to glance at the proposed amendment. The hardest decision will be for licensees, hoteliers and clubs to decide what capital expenditure they need to outlay for improvements and alterations, given the four specific phases involved. That decision is causing a great deal of anxiety, not so much in respect of the dates, but in respect of the cost of the alterations needed for each specific phase.
The compounding impact of capital expenditure upon capital expenditure will place severe financial burdens on licensees and clubs as they struggle to comply with the legislation. As the shadow Minister for licensing and gaming issues, I am pleased to represent the views of the industry and point to a fairer and more reasonable approach to the governance and taxation of clubs and hotels. The Coalition intends to consult genuinely and to settle a memorandum of understanding with the industry as we approach the March 2007 State election, when the Government's dictatorial, arrogant approach will ultimately be brought to heel.
Mr ANTHONY ROBERTS (Lane Cove) [8.21 p.m.]: The purpose of the Smoke-free Environment Amendment Bill is to gradually phase out smoking in closed areas of hotels, clubs, casinos and nightclubs by 1 July 2007. Surprisingly, the gaming table area of the Star City Casino's international high roller room will be exempt, subject to an annual review of similar interstate exemptions. The bill also prohibits smoking from 1 January 2005, as per voluntary share-the-air bans, at service counters and in at least one gaming machine room in venues with more than one gaming machine room, and from 1 July 2005 on dance floors, in foyers, toilets and auditoria. The bill provides temporary exemptions during the phase-out period, which are: 1 July 2005 to 30 June 2006, one bar, gaming or recreation room or area comprising up to 50 per cent of the area of all such rooms; 1 July 2006 to 30 June 2007, one bar, gaming or recreation room or area comprising up to 25 per cent of the area of all such rooms.
Exempt smoking areas must be separated from non-smoking areas with a partition or a 1.5 metre buffer zone. The bill also allows for new regulations to deem when a covered outside area is enclosed. I understand the reasons for that. The Australian Government's Department of Health and Ageing issued a document headed "The dangers of passive smoking" which stated:
Smokers don't only put themselves at risk of serious health problems—people around them can also be exposed to much potential danger. The smoke exhaled by someone else or emitted by the tip of a burning cigarette is called environmental tobacco smoke, and breathing it in is known as passive smoking.
Environmental tobacco smoke is a major source of indoor air pollution. It exposes non-smokers to most of the same toxic gases, chemicals and fine particles that smokers inhale directly with tobacco smoke. The particles in the unfiltered smoke that drifts from burning cigarette tips can be finer and more concentrated, meaning that they can be inhaled deeper into the lungs and stay longer in the body of the passive smoker than in the person who is smoking.
Obviously, the more time people spend in close company with smokers, the more they are exposed to environmental tobacco smoke and the worse the threat to their health. Naturally, this often means those most at risk are the people smokers care most about—their loved ones and friends. In 1998, 128 people died of passive smoking and another 1,968 were hospitalised. Frequent exposure to environmental tobacco smoke in enclosed public places and in some working environments—such as hotels and bars—can be hazardous too.
The bill, certainly at its base, is being brought in to protect people—and we are talking about the elimination and minimisation of exposure to environmental tobacco smoke—and it will have obvious positive impacts on the health of staff, non-smoking patrons and, possibly, smoking patrons. Nevertheless, I have a number of concerns about the bill. My first concern is the lack of consultation, particularly with the clubs movement and the Australian Hotels Association.
Mr ACTING-SPEAKER (Mr Paul Lynch): Order! The Minister will cease interjecting.
Mr ANTHONY ROBERTS: The industry is strongly opposed, citing significant revenue impacts, particularly on gaming, with consequences on employment and State tax revenues. That has been borne out by the bans in Victorian gaming rooms. Ireland has experience in this area. An article in the Australian Hotels Association magazine, Our Hotel, stated:
Four months into total smoking bans in the Republic of Ireland and the hotel industry is suffering. It's suffering badly. Here are the cold, hard facts …
• 61 per cent of bars in Dublin are experiencing "unsustainable" losses. Many won't be able to keep going for much longer. The smaller pubs will close.
• Takings are down between 15-25 per cent in rural areas such as Limerick, Cork & Waterford. Imagine that in Australian pubs—losses greater than an acceptable profit margin!
• Accommodation hotels have lost 29 per cent in morning tea & coffee sales. Liquor sales at functions and weddings have dropped 14 per cent …
• Jobs have already been lost. A massive 19 per cent of staff in city pubs have gone. The smaller bars, operated by "Mum & Dad" in rural areas—
As they are in New South Wales—
• have shed 8 per cent of staff. Dad has been forced to look elsewhere for work. Family businesses are being destroyed.
• Lunch-time trade has all but disappeared. Pubs are opening later because they day-time customers have stopped coming.
• Outdoor areas are proving useless …
• Tourism is suffering. In County Kerry alone, bed nights are already down 16 per cent, and it's predicted to get worse.
The devastation in Ireland has occurred during the summer months, when the days are long and nightfall does not occur until 9.30pm. Come the onset of winter, there will be even greater losses.
Because of the lack of consultation with key industry groups this has become an important part of the bill. Those industry groups are already suffering from the iniquitous poker machine tax that has been imposed on them. Job losses will occur in areas that can ill-afford them. Everyone would agree that there must be a reduction in the level of smoking, and that workers must be protected. We are talking about removing ourselves from this centralised nanny state that the Government is trying to put us into and move towards self-regulation. The Government should give the clubs until 2009 to implement these provisions, and it is essential that we work in with those great employers and contributors to the New South Wales economy. When people in New York City read that liquor sales are up, they should not believe that. The magazine Our Hotel cited the real facts as:
Liquor sales in bars are down on average 15-20 per cent and some by 40 per cent.
Industry associations predict that a third of New York bars will close within 2 years.
The statistics from New York on closing bars could be equated with those in the centre of Sydney. Sydney bars have the same sort of unique cosmopolitan atmosphere and attract the same sort of people as New York bars. I am talking about the livelihoods of taxpayers who, in 2007 or even earlier, will be out of a job. Why? Because the Government is not prepared to sit down with industry groups, Clubs New South Wales and the Australian Hotels Association, who are incredibly responsible organisations. They are capable of self-regulation. The Government is not allowing them to do that. It is taking a centralised pseudo-Marxist attitude of forcing itself on small businesses.
We should remember that pubs and clubs often provide superannuation. They are often family businesses, particularly in the bush. We cannot ignore the fact that some people will lose a large amount of money and others will lose their jobs if they are not allowed to do what they have always done, that is, act responsibly. About 99.9 per cent of pubs and clubs carry out their duties under our current liquor laws responsibly and openly. The Government will not give publicans in my electorate—fine upstanding citizens who are involved in their local communities—a chance to gear up their businesses to these sudden changes. The Government will not allow local businesses and small business people to gear up their businesses so that they can compete in a competitive industry.
Mr Frank Sartor: Do you really have to speak for 15 minutes?
Mr ANTHONY ROBERTS: The Minister just asked me whether I have to speak for a full 15 minutes. I will speak for as long as it takes to ensure that pubs and clubs and their employees get a fair deal in New South Wales. I am sure my colleagues will do the same. Outdoor areas in New York are being shut down early each night, well short of their licensed trading hours, due to noise complaints. The city has established a dial-311 phone line for people to report noise complaints. Basically, that is anti-business. Venues now have to hire additional security guards to stop patrons smoking indoors and to control those who are forced onto the streets.
I am not talking about a police State in South America; I am talking about New York. That is what the Government wants to introduce in New South Wales. The United Restaurant and Tavern Owners of New York estimate that it will take two years to kill off small businesses. By 2005-06 many small businesses in New York will disappear because of financial ruin and the same thing will happen in New South Wales. I quote from an article from the Australian Hotels Association, which states:
In Australia's hotels we can expect greater financial disaster and higher job losses. We have anticipated gaming revenue losses of at least 25 per cent to add to the equation.
Industry groups are asking for a gradual, step-by-step introduction of these bans. They need a sensible plan for the staged implementation of these bans over the next few years. Areas in pubs and clubs should be reserved for smokers. Hoteliers and clubs can then retain their patrons, be they smokers or non-smokers. They want consultation and they want a fair go. They want to be able to protect their workers. Clubs are doing terribly badly at the moment as a result of the poker machine tax. That tax is killing clubs throughout regional and metropolitan New South Wales. This legislation is the final nail in the coffin. As I stated earlier, pubs and clubs are essential in New South Wales. No-one opposes the Government's move to introduce non-smoking areas.
Mr Frank Sartor: It makes sense. Be sensible.
Mr ANTHONY ROBERTS: The Minister said that we must be sensible. We are talking to organisations and we are asking them, "How do we move forward together?" Rather than adopting a unilateral approach we should move forward together in partnership to ensure that we do not have job losses. New South Wales can ill afford to lose any more jobs. We are already losing jobs to Queensland and Victoria as a result of the shift in building investment and the payment of extensive payroll tax. All honourable members are aware of the taxes that have been rammed through this House. There are more taxes in New South Wales than there are locusts. New South Wales has a tax plague.
I am concerned about smaller family owned pubs and clubs, particularly those in rural areas. If we do not keep an eye on them they will be gone forever and multinational bottle barns will replace them. We will have huge liquor stores and people will have to smoke at home. People will no longer be able to smoke in the small, designated smoking areas in pubs or clubs; they will be deprived of that forever. We do not oppose this legislation as it will contribute to the good health of the people of New South Wales. However, as the Minister said—and I hope that this argument wins him over—we must take a united approach. We must work hand in hand with two of the biggest employers in New South Wales, the hotel industry and the clubs industry.
We must move forward together on this issue. We must have a coalition of the willing, and we must have participation from all sectors. It has been proved that hotels and clubs are responsible organisations. They are happy to move forward. But because of the competitive nature of the club and pub industry they need time to adapt and adjust to these changes, otherwise there will be a further loss of jobs. I pay tribute to and thank club and pub owners and all those who work in our club and pub industry. They do a fantastic job of providing services to the community. The Opposition has not forgotten them. Opposition members will stand up for them, for their health and for their jobs. I thank them all. [Time expired.]
Mr WAYNE MERTON (Baulkham Hills) [8.36 p.m.]: The Opposition does not oppose the Smoke-free Environment Amendment Bill. However, I wish to make a number of observations that I believe are relevant and should be noted by the House. Effectively, this bill will phase out smoking in enclosed areas of hotels, clubs, casinos and nightclubs by 1 July 2007. The bill exempts some areas, about which I will speak later, but, in essence, it seeks to prohibit smoking from 1 January 2005 in accordance with the voluntary share-the-air bans that have been in existence for some time at service counters, and in at least one gaming machine room in venues with more than one gaming machine room.
From 1 July 2005 smoking will be banned in foyers, on dance floors, in toilets and in auditoriums. The bill provides for temporary exemptions during the phase-out period from 1 July 2005 until 30 June 2006. Those exemptions will apply to one bar, a gaming or recreation room, or an area comprising up to 50 per cent of the area of all such rooms. A further temporary exemption will apply from 1 July 2006 until 30 June 2007 to one bar, a gaming or recreation room, or an area comprising up to 25 per cent of the area of all such rooms. Exempt smoking areas must be separated from non-smoking areas by a petition or by a 1.5 metre buffer zone. New regulations will be imposed which will deem when a covered outside area is enclosed. That is purely a housekeeping arrangement. The bill will bring New South Wales into closer alignment with the new total or partial smoking bans in other States. The elimination or minimisation of exposure to environmental tobacco smoke will have obvious positive impacts on the health of staff, non-smoking patrons and, possibly, smoking patrons.
There is no doubt that over the years many people have suffered adversely as a result of inhaling cigarette smoke, either actively or passively. People who do not smoke should not be the victims of passive smoke, which damages their lungs. There is a compelling argument that non-smokers should not become the passive victims of another person's compulsive habit. The Opposition does not oppose the concept of protecting patrons and staff, who usually spend more time in pubs and clubs than patrons, but not always. Over the years the courts have awarded damages to victims of passive smoking who were employed to work in what the courts termed a dangerous workplace. We support the bill and certainly do not oppose the introduction of measures that give hotel industry staff and patrons some protection from harmful cigarette smoke.
However, we should make some additional observations. This legislation is difficult because the interests of those who support the introduction of smoke-free environments conflict with those of many who will be adversely affected by this ban. Unlike the honourable member for Lane Cove, I will not go into the details of this conflict at great length. But overseas experience has shown that the hotel industry can suffer as a result of a total ban on smoking. The honourable member for Lane Cove said that, following the introduction of the ban in the Republic of Ireland, about 61 per cent of bars in Dublin experienced unsustainable losses and many would be unable to keep trading much longer. Usually the small hotels were forced to close. Takings in rural areas decreased by between 15 per cent and 25 per cent and hotels with accommodation lost about 29 per cent of morning tea and coffee sales. The ban has caused job losses. A massive 19 per cent of staff in city pubs in Ireland have been dismissed.
Another aspect of the overseas experience is relevant to suburban and particularly rural and regional New South Wales. The smaller hotels in rural areas of Ireland that were operated by mums and dads have been forced to shed about 10 per cent of their staff. In many instances one proprietor has been forced to look for a second job to keep the business going and a number of family businesses have been destroyed. There is no doubt that pubs and clubs are major employers. Many hotels in rural New South Wales are run by mums and dads, who keep the family business going. There is a risk that this legislation will affect those businesses adversely. The club industry will suffer a double whammy from the Government's harsh and unreasonable poker machine tax and now there is this restriction on smoking within club environs, which will cause further losses.
The local club or hotel is the social focus in many country towns. People go there to enjoy a meal and to socialise outside the home after a long day's work on the property. They could well find that small hotels and clubs are forced to close, which could present social problems. I suppose it is a question of balance. While the Opposition appreciates the reasons for this legislation, we believe—and I think many in the club and hotel industries share our concern—the January 2005 deadline is too soon. The lead time is too short and this will cause difficulties with cost, planning approvals and provisions.
Mr Frank Sartor: It's in the existing agreement.
Mr WAYNE MERTON: But it gets tighter each year. In July 2006 the noose will be tightened again as the restrictions increase. I understand the Minister's situation but small business people are struggling. They do not make enormous sums of money—in many cases the country hotel or club is not much more than a community service. Now Big Brother has come in, with minimum consultation. The Government has not gone overboard consulting on this issue. It has probably done a bit better than it did with the poker machine tax, on which there was absolutely no consultation
Mr Frank Sartor: That's rubbish. Eight years of consultation!
Mr WAYNE MERTON: The Minister can say that but, first, he has not been in the job for eight years so that is clearly hearsay and, second, the industry does not share his view. The industry does not believe there has been eight years of consultation. Assuming the Minister is correct, the reality is that the bill will impose a deadline next year and the restrictions will become more stringent the following year. Consultation may have occurred over a period but the Minister and I do not know how detailed it was. I assure the Minister that the general feeling in the industry is that this legislation has been forced upon it and that the introduction dates are somewhat unreasonable.
The Opposition does not oppose the legislation but we believe people who have mortgaged their houses to buy a hotel or anyone else who has taken on extra financial obligations to start a business is entitled to a fair deal. The introduction date in the legislation has caused concern not only in the club industry but among Australian Hotels Association [AHA] representatives. The AHA is also concerned about liability issues in the period between the enactment of the legislation and the introduction of a full ban. The association objects strongly to the July 2006 measures and wants the 2005 exemptions to continue until 2007. That is not unreasonable. The Opposition understands that we have an obligation to the larger community. We appreciate that smoking causes considerable difficulties within the industry not only for employers but for non-smoking patrons who are the passive victims of cigarette smoke. We do not oppose the bill for that reason.
However, we believe—the Minister does not accept this point, just as he does not accept that the poker machine tax was introduced without any real consultation—positive consultation is lacking and the short lead time until the July 2005 restrictions is unreasonable to business operators. It is all very well for government, which has all the resources and infrastructure in the world, to make policy but small business operators and the chairmen or presidents of clubs in country towns are already battling. They are close to the edge and now they must toe the line again because Big Brother says so. We believe there should have been more consultation on this bill. We do not oppose the principle of the bill: we understand that cigarette smoke can cause health problems, which in many cases are extremely serious. We do not seek to thwart the Minister in his desire to protect the public but we must highlight the lack of consultation.
I do not know whether the Minister is prepared to help small businesses and give them some form of relief to mitigate their losses. It appears not. This legislation will be enacted and many hotels in New South Wales, particularly in country areas, will battle to stay in business. The Opposition believes that there should have been more consultation in this regard, but it does not oppose the principle. Cigarette smoking can cause considerable problems, which are serious in many cases. We do not seek to thwart the Minister's desire to protect the public. I do not know whether the Minister is prepared to give relief to mitigate the losses of the many hotels in New South Wales, particularly in the country, that will battle to stay in business as a result of this legislation.
The Opposition understands the motives for introducing legislation to protect the community, but we believe that the introduction date of this legislation is somewhat hasty. I commend the honourable member for Blacktown for his sterling performance during question time today, without prepared notes. I cannot understand why he is not a Minister in the Carr Government. In the 15 years I have been in this Parliament, his was the only genuine question without notice I have seen. However, he is fundamentally misguided: he joined the Australian Labor Party. He has to live with that and pay the price. The Opposition does not oppose the bill, but we want the House to note our observations.
Mr ROBERT OAKESHOTT (Port Macquarie) [8.51 p.m.]: I welcome the Smoke-free Environment Amendment Bill. I also acknowledge the performance of the honourable member for Blacktown during question time today. He gave an excellent answer to a very good question from the honourable member for Ballina.
Mr Wayne Merton: Minister Gibson.
Mr ROBERT OAKESHOTT: He should be Minister Gibson. This is welcome legislation. I congratulate the Minister for Health for introducing it. I know that the negotiations have been difficult. We do not live in a State where there is a clean slate. Interest groups are at work in this State, whether they represent the smoking lobby or the hotel and club industries. As a former shadow Minister for Gaming and Racing, I recognise the tiptoeing exercise necessary to introduce such legislation. In the western world the three biggest killers are heart disease, lung cancer and skin cancer. They are all the result of lifestyle options. Two of those cancers are largely attributable to one activity: smoking. While I am a freedom-of-choice man, when it comes to smoking, consideration should extend foremost to those who choose not to smoke. I urge the hotel and club industries and the current smokers in New South Wales to recognise the broader population health benefits as a result of the introduction of this legislation.
While people in certain pubs and clubs may kick and scream over a beer because of this ban, I hope the broader population will recognise the health improvements that are the direct result of this legislation. I will be blatant and say that there will be direct health benefits. In my view, the introduction of this legislation will directly decrease the rates of lung cancer and heart disease, in particular. There will be a direct correlation as a result of this legislation. I support the principle of the legislation and the direction the Government is taking. In my view, the legislation should be extended to all facilities throughout New South Wales. I foreshadow that during the Committee stage I will move an amendment so that the casino private gaming area is no longer exempt from the legislation. I do not think it does Star City Casino or any future casinos post-2007 any favours by allowing them that exemption.
Honourable members have said that this is about the workers of New South Wales, that this is an occupational health and safety issue and that this is a court case waiting to happen. The Government has recognised a problem and it has undertaken a course to fix it. However, there is still a court case waiting to happen from a worker at Star City Casino. In my view, that person can not only take action against Star City Casino but can also take action against the Casino Control Authority, the agent of government and the regulator of casino activities in New South Wales, simply because an exemption has been left for a private gaming area. I do not accept that that exemption has to be in place because of tourism issues—that international visitors use the high-roller room—or because other State-run casinos have not yet done that.
I hope that New South Wales takes the lead and breaks the eyeballing activity between casino operators around Australia. I urge the Minister and the Government to consider my proposed amendment. I very much doubt that it will be passed, but I hope it flags my view and the views of many people throughout New South Wales that there should be consistency in policy and principles. If the Government wants to protect workers in pubs and clubs from the harm caused by smoking, it should also protect the workers in a casino, including in the high-rollers room. I ask for consistency in this legislation. I support the bill. I congratulate the Minister for Health on advancing public health issues in New South Wales.
Ms CLOVER MOORE (Bligh) [8.56 p.m.]: There are compelling reasons to support the Smoke-free Environment Amendment Bill, which will ban smoking in pubs and clubs from 2007. My electorate of Bligh has a large number of entertainment precincts—such as Fox Studios, Oxford Street, Taylor Square and Kings Cross—where workers and patrons of licensed venues are exposed to harmful levels of tobacco smoke: 4.4 times the amount of passive smoke levels that are found in domestic environments. Amending the Smoke-free Environment Act 2000 to include pubs and clubs not only protects the health rights of workers in the hospitality industry, it also protects the two million Australians with a smoke-affected disability. For example, one in 10 Australians suffer from asthma and more than a half a million Australians have heart disease, diabetes or respiratory conditions.
In 1997 the New South Wales Anti-Discrimination Board ruled that a smoky room is as much discrimination against a person with asthma as are steps to a person in a wheelchair. This bill is important in protecting public health. The 1999-2002 report of the New South Wales Chief Medical Officer concluded that "smoking-related illnesses account for 54,000 hospital admissions annually" resulting in "$500,000 per day in hospital costs, excluding the cost of treatment". In 2004 the New South Wales Cancer Council found that exposure to passive smoking in licensed premises caused between 73 and 97 deaths per year among the State's 40,000 hospital workers. The National Drug Strategy estimates that in Australia each year exposure to second-hand smoke causes more than 220 deaths from lung cancer, heart disease and respiratory illness.
This bill will reduce those statistics dramatically and will allow expenditure to be redirected to other areas of health care and health promotion. This must be welcome by all members of the House. There is no credible evidence that there will be negative economic impacts as a result of this legislation. In fact, the VicHealth Centre for Tobacco control examined 100 studies, both international and domestic, which assessed the economic impacts of smoke-free policies in the hospitality industry. None of the studies concluded that smoke-free restaurant and bar laws had an adverse impact on revenues or jobs. Rather, some studies showed a positive impact on trade, finding that smoking bans attracted the patronage of non-smokers.
Smokers represent 21 per cent of the Australian population, a statistic that the Government aims to reduce each year. In 2002 a study by the University of California's Centre for Tobacco Control, Research and Education found that total smoking bans in workplaces not only protect non-smokers from passive smoking but also encourage smokers to quit or reduce cigarette consumption. Again, that is an aim that all honourable members of this House must support. The study concluded that smoke-free workplaces are associated with reductions in prevalence of smoking. The Government's initiative to ban smoking in hotels and clubs is an important action towards the reduction of smoking-related health problems in New South Wales. According to the Australian Institute of Health and Welfare, in 2004 the economic and health costs, including absenteeism and low productivity resulting from smoking and passive smoking, are estimated to total $21 billion a year.
The ban also protects owners of licensed venues from the costs of potential legal action and insurance premium rises. According to the South Australian Smoke-free Taskforce in 2003, "ongoing exposure and mounting precedent will result in higher claims in the future". New South Wales, by this legislation, is also aligning itself with the actions of other States, including Tasmania, which aims to ban smoking in all bars and licensed premises from January 2006. Queensland proposes a ban from 1 July 2006, Victoria proposes a ban from 1 July 2007 and South Australia proposes a ban from 1 October 2007. That is a welcome movement by those other States.
The New South Wales legislation is also consistent with the 2003 recommendations of the National Occupational Health and Safety Commission to eliminate "exposure to environmental tobacco smoke in all Australian workplaces" and the National Tobacco Strategy 1999 to 2002-03 to make "indoor public venues smoke-free environments". New South Wales is also lining up with Australia's endorsement of the World Health Organisation's Framework Convention on Tobacco Control 2003, which states under article 8 that "Non-smokers must be protected in workplaces, public transport and indoor public places". As well, there is strong community support for this legislation. The Cancer Council of New South Wales has conducted studies and found that there is increasing public support. In 2001 a Cancer Council survey found that two-thirds of the public support a total smoking ban. A follow-up study in 2003 found that public support for total smoking bans had increased by 20 per cent. The evidence is clear: Smoky venues cause serious harm to workers and patrons; ventilation and separate smoking areas do not effectively protect people from such harm; and a clear majority of the community favour total bans.
In conclusion, I would like to say as Lord Mayor that, in response to this legislation, the city will develop strategies to respond to the practical implications of the ban. For example, we are going to have to deal with smokers congregating on footpaths outside venues, and we will need to minimise the impacts not only on passers-by who want to use our public ways, but also on residents. We will also need to address the issue of cigarette butts littering our streets. ASH [Action on Smoking and Health] Australia has found that almost 50 per cent of all urban litter is tobacco related, and as sponsors of the Clean Harbours Program, we certainly will want a reduction of cigarette butts going into stormwater and therefore into the harbour. But there will be other ways of doing that. The city will work together with relevant State government agencies and local councils to investigate the best means of responding to these issues. I conclude by commending the Government and the Minister for Health for introducing this long-overdue legislation. I think it will be very much supported by the majority of the people of this State and will lead to a dramatic improvement in our health and opportunities for people to enjoy entertainment precincts.
Mr DAVID BARR (Manly) [9.03 p.m.]: I support the Smoke-free Environment Amendment Bill. I congratulate the Government on introducing it. The only point I would make is that it could have been introduced earlier. The issue, quite simply, is one of health. We heard a certain amount of puffery from the honourable member for Lane Cove and the honourable member for Baulkham Hills on all sorts of other matters. In essence, this bill is about health. When Sir Walter Raleigh brought back the tobacco leaf from North America, he did the world a grave disservice. Tobacco smoking was taken up by the British upper class of the time, and the practice filtered down to the middle class and lower class.
Mr Ian Slack-Smith: Excuse the pun!
Mr DAVID BARR: Yes, excuse the pun. Unfortunately, tobacco became a mass marketed product. If attempts were being made today to put tobacco on the market for the first time, there is no question that cigarettes would not be allowed. But cigarettes came about before we had health departments, government bureaucracies and so on that would vet such substances. Basically, cigarettes contain nicotine as well as myriad other chemicals. They are highly toxic and highly addictive, and cigarette manufacturers are little more than purveyors of a drug of severe addiction, and one that brings about severe ill-health and death. Let us make no bones about that: cigarette smoking leads to ill-health and death—but not just for those who pursue this habit, but also for those who inhale the smoke from cigarettes—smoke that is not even passed through a filter. It is now well documented that passive smoking is a significant health threat, so why should innocent people be exposed to the vices of others? There is no justification whatsoever for that.
People may assert that they have a right to smoke, that it is their free choice. However, when they become ill, they become dependent on the health system—that is, they become dependent on the taxpayer to fund their battles against the serious diseases that they have brought on by their own habits. Furthermore, they impose burdens on their families and friends and on workplaces. So let us not beat around the bush on the issue of health and smoking. It is a very grave problem, and the Government is entirely correct in phasing out smoke in licensed premises. It allows until 1 July 2007 for a full phase-out of the practice, except in high-roller rooms. The honourable member for Port Macquarie foreshadowed that he will move an amendment in that respect. That amendment will have my support. I do not understand why there should be exceptions. I know that the simple reason put in favour of the exception is that high-rollers bring in a lot of money, and some want that money stream to continue. That does not stack up against the logic against the vice of smoking and the ill-health and death that brings about. Whether one is a high-roller or not, that is the consequence. People who work in those rooms will be afflicted by the smoke and the disease that will come from inhaling it.
Australia has made great ground against smoking—much more so than many other countries. But we still have problem areas. Blue-collar workers still tend to be heavier smokers, and there is the worrying trend that more young girls seem to be taking up smoking. In adolescence, smoking was one of the first acts of rejection; people hung out in milk bars and so on and had their first cigarette, adopting exaggerated poses and taking puffs and so on. Unfortunately, from that behaviour, the young people of the fifties developed an addiction, for which they pay the price today. We do not want today's generation to pay the same price of addiction.
One of the distasteful things about the cigarette smoking habit is that people think they can discard their butts anywhere they like. They just toss their butts on the ground, in the expectation—if it should exercise their consciousness—that someone else will be there to pick it up. Research done by University of New South Wales Associate Professor James Orr, among others, indicates a serious problem that comes from throwing cigarette butts on the ground. In the sediment in gross pollutant traps at the end of stormwater drains that catch various bits of debris—about 5 per cent of what is caught by gross pollutant traps is sediment—are measurable quantities of nicotine. That is so simply because cigarette butts are washed down stormwater drains and there is a cumulative build-up of nicotine in those traps. Of course, that finds itself into waters, and nicotine is a poison and it is toxic to fish.
That is a simple, but stark, illustration of how cigarette smoking impacts on other people and on our environment. There is just no excuse to allow this to keep going the way it is. There is no excuse for allowing people to smoke indoors and inflict the adverse effects of their habits on other people, and in so doing inflict ill-health on them. It is that simple. All the wishy-washy talk that we heard from some honourable members cannot overcome the basic fact that smoking is a significant health issue, and it must be overcome. This is terrific landmark legislation for New South Wales. It is entirely reasonable that the smoking ban be enforced by 2007. The Government should put the screws on cigarette companies to ensure that the next generation of Australians do not become addicted to smoking. The Hollywood matinee idols of the 1950s made smoking cigarettes seem sophisticated. Today insidious marketing is placing cigarette packets strategically close to actors in Hollywood productions in an attempt to glamorise smoking again. However, it is not glamorous. It is dirty and it brings death and destruction. We should do everything we can to phase it out. I support the bill.
Mr FRANK SARTOR (Rockdale—Minister for Energy and Utilities, Minister for Science and Medical Research, Minister Assisting the Minister for Health (Cancer), and Minister Assisting the Premier on the Arts) [9.10 p.m.], in reply: I thank honourable members for their contributions. I note the comments that attest to the overwhelming evidence of the dangers of environmental tobacco smoke. As the Premier said when the Government announced its intention to introduce this legislation, this is not an act of villainy or ideology but a practical approach to protecting the health of workers in licensed premises. The bill is a considered, measured and sensible response to a major health danger to our workers. It is a significant step in the Government's planned commitment to protect the New South Wales public from the dangers of environmental tobacco smoke. It also represents a major cultural change in the community. The fact that many workplaces have banned smoking and that the government is now legislating to ban smoking in licensed premises suggests a major change in the cultural approach to smoking.
The bill establishes a phase-in timetable that will begin in January 2005 with the enactment of the provisions of the existing voluntary agreement with the pubs and clubs. The timetable will culminate with smoking bans in all enclosed areas in licensed premises from July 2007. The Government has taken a collaborative approach to this important public health initiative. To maximise compliance with smoking bans the hospitality industry has been consulted throughout their development. As a result of the ongoing consultation process I foreshadow that I will move amendments in Committee to assist the hospitality industry to achieve a smooth transition between the different phases of restrictions. In addition, the Health Department has undertaken to work closely and co-operatively with operators to enforce restrictions, especially in the early stages. Public opinion has been actively sought. Results of surveys show that support has been growing steadily as the early restrictions have come into effect.
Banning smoking in progressive phases, unlike the action of the Victorian and Irish Governments and the action taken in New York and New Zealand, has enabled both industry and patrons in New South Wales to accept and understand the benefits of a smoke-free environment. The careful timing of the implementation of the ban has been essential to the process of changing community and industry attitudes to smoking in enclosed public spaces. It allows people to accept the changes gradually and has led to a high degree of compliance even when the bans were voluntary. We have heard a lot of comment about the financial and economic impacts of the ban. Evidence from Victoria, where the ban affected only gaming rooms, which provide most of the income for the 520 or 540 licensed premises, shows that the ban had a negative impact on revenue to both clubs and pubs and the Victorian Government. Many assertions have been made and anecdotal evidence presented about other jurisdictions.
The official figures in New York and in a number of other jurisdictions show that after a small adjustment patronage in food and beverage increased, which is consistent with the polling by the Department of Health. Anecdotal evidence suggests that smoking bans have led to an economic downturn in pubs in Ireland. However, pubs in Ireland were experiencing other changes before the non-smoking bans were introduced. I suspect that some of the information is confusing the causal effect of those trends. To refute suggestions that the bans will be introduced too quickly and without consultation, I will refer to three newspaper articles from the last decade. An article in the Sydney Morning Herald of 1 October 1997 refers to a decision hailed as the beginning of the end for indoor smoking. In that decision the Human Rights and Equal Opportunity Commission found that a Sydney nightclub had discriminated against an asthmatic by allowing smoking. The article concluded with a comment by the President of the Australian Hotels Association [AHA], Richard Mulcahy, which says that he was aware of the judgment and the AHA was considering its position. A report of 3 October 1997 refers to WorkCover and the Sydney Harbour Casino. The article concluded:
In response, Australian Hotels Association national executive director Richard Mulcahy said "time lines" for phasing out smoking in public places had already been set.
"The WorkCover order seems to be trying to overrule the NSW Parliament as there is already legislation in place in terms of how to deal with smoking in hospitality venues", he said.
A further article appeared on 13 December 1999 in which the AHA was quoted as saying:
I suppose we could see the day where hotels may provide smoke-free areas.
A former Minister for Health, the Hon. Andrew Refshauge, organised a working party during his tenure as Minister for Health from 1995 to 1999. Another former Minister for Health, the Hon. Craig Knowles, organised a further working party during his tenure as Minister for Health from 1999 to 2003. In consultation with Minister Iemma I organised another working party last year, which has been involved in a lot of consultation. I have received hundreds of overwhelmingly positive emails since the Premier announced our intention to legislate for smoke-free pubs and clubs. The interesting thing about these responses is the number I have received from licensed premises. Chris Smith, the General Manager of the Pittwater RSL in the electorate of the Leader of the Opposition, was quoted in the Manly Daily of 30 October as saying:
We have been expecting it and we have planned for it in our extensions where we have provided smoke-free bars.
Bruce Wood, the Manager of the largest hotel in Maitland and AHA Regional President, said:
We started making changes three years ago. We have been moving towards this change for some time.
The Steyne Hotel in Manly has already increased its smoke-free areas. Its manager, Wayne Ranson, was quoted in the Manly Daily on 13 October as saying:
It took a little time for people to warm to the idea, especially smokers who were moved. But I don't think we've had much of a problem.
The General Manager of the Dee Why RSL, Grant Eastherby, in the electorate of the honourable member for Wakehurst, said that his club was also catering for smoking bans in redevelopment plans. He said:
We support issues to protect people's health. We need to cater for 23,000 members, not half or a quarter of them.
The owner of the Carlisle Castle Hotel in Newtown, Anthony Hassett, said:
We've had a long lead-up to this ban and we think we are ready for it.
One Dubbo publican went so far as to say that smoking bans had caused hardly a ripple. Similar sorts of comments came from St Leonards, Glen Innes and the Emu rugby club at Orange. The AHA Regional President, Orana region, Tony Fitzsimmons said he was grateful for the ban's phased-in introduction, which he said would allow adjustment to the inevitable restrictions. He also said:
I'm relieved it is being phased in. They are taking a sensible approach by not imposing the total ban until 2007.
I could go on. The simple fact is that although 13 licensed premises supported the ban as quoted in the press and 6 opposed it, such those in Inverell, Hornsby and several other places—and I accept that—it has been supported by all the Liberal Oppositions around Australia. I am pleased that the Liberal Opposition in New South Wales has finally come on board and I congratulate them on that. It is better late than never. The Government's announcement that it intended to legislate for total smoking bans in enclosed areas of licensed premises has received a great deal of support. Patrons, entertainers and staff who have experienced discomfort and illness from environmental tobacco smoke have applauded the ban.
During the second reading stage there was some criticism about provisions being expressed in regulations rather than in the provisions of the bill. One of the requirements of a regulatory regime involves defining the term outdoor public spaces. That will be done by the regulations to allow more time for consultation to take place with the industry on what makes sense. Simple arithmetical rules have been rejected as incapable of taking into account all the possible permutations and combinations involved in a definition, given the various configurations of 3,500 licensed premises in New South Wales. I am also considering guidelines that will address what is meant by the term outdoor public space. That is why the Government is proceeding down the path of regulation. Consultation on such matters is inappropriate while the legislation is before the House. When the bill is passed, the hotel and licensed clubs industry as well as the health industry will be consulted about what they regard as the appropriate manner in which to deal with a definition for outdoor public space.
People have debated the public health benefits of the bill, which are obviously enormous and do not need to be repeated by me. However, there will be a major public advertising campaign involved with each step of implementation of the bill. Major public advertising will deal firstly with Quit and the desire of the Government to reduce the incidence of smoking, which currently is 21 per cent of the population, and to advise people who frequent hotels and clubs about smoking and when the changes will take place. It is my intention to involve the public as much as is possible. New South Wales has adopted a progressive approach, unlike other jurisdictions, because I believe it is important for regular signals to be given to the community, particularly to people who smoke, to indicate that the rules are changing. Clubs and hotels will have to provide clean air for their patrons and their staff. It is also important for behaviour to change and for environments to be adjusted.
I proffer a comment about local government. The shadow Minister for Health referred to the role of local government. I note the comments made by the Lord Mayer of Sydney, who is also the honourable member for Bligh. It is important for local government to understand that when it comes to protecting the public interest, the health of people who are inside licensed premises is more important than are local amenity issues to do with a footpath. The smoke-free environment issue must be addressed first to ensure that the changes are appropriately phased in and that the timing allows for clubs and pubs to adjust to the changed circumstances that they genuinely have to deal with. I ask all local government authorities that are keen to do the right thing—and I hasten to add that their motivation is unquestionable—to be patient and to proceed very slowly with draconian prohibitions related to the use of footpaths.
If there is a localised problem caused by congregation of smokers on a footpath, local authorities by all means should deal with that, but they should remember that legislation for a smoke-free environment has been introduced in many other jurisdictions without any evidence of major collateral issues emerging. I ask local authorities to proceed cautiously so that the really important change to provide a smoke-free environment can be phased in. Indoor pollution by smoke is a much more important issue than are a few outdoor amenity issues, at least in the short term, but over time all of these issues will be addressed.
In response to the criticism of hypocrisy, I point out the simple fact that although this legislation will be phased in gradually, there could be some financial impacts over time. If there are, they are likely to be in the gaming area, not in the food and beverages area. The Government does not expect there to be any adverse impacts in the food and beverages area, but there may be some in the gaming area. If that proves be the case, the New South Wales Government will receive less revenue, and so be it. The simple fact is that this legislation concerns public health and it particularly affects workers in clubs and pubs. Contrary to the suggestion that the Government is being hypocritical in relation to this matter, I believe that the Government has tackled this issue as it should, in the public interest, and that is what is important here. I note that many independent studies show that the implementation of legislation of this type does not result in a negative economic impact, but of course there is a risk that there could be some negative impact, at least in the short term.
I take this opportunity to thank people who have agitated for this type of legislation over a lengthy period, including the Australian Medical Association [AMA] and the New South Wales Cancer Council, and in particular a board member of the council, Professor Simon Chapman, who has advocated for this legislation for decades and deserves special mention. He is to be commended for his fearless advocacy against tobacco companies and the effectiveness of the way in which he has highlighted to the public the dangers of tobacco smoking and environmental tobacco smoke. I also thank Dr Andrew Penman, who is a member of the New South Wales Cancer Council. I take this opportunity to also congratulate people such as Joy McKean, who is Slim Dusty's widow, for her campaign, and the George Washingmachines of this world as well as many other entertainers who have supported the Government's move toward a smoke-free environment. Recently I was near the Warragamba Dam for the launch of the Metropolitan Water Plan and I met a young man who told me that he is a musician who works in a prominent Sydney club. He told me that he is pleased that this legislation is being introduced, because his life is hell.
I also thank the Cancer Institute and Professor Jim Bishop and his board for their untiring support and practicality in assisting to bring this legislation forward. The policies and procedures of this legislation are incorporated in the State's cancer plan, which is the first cancer plan of any State in Australia. By implementation of this legislation, we are moving toward achievement of the objects in the State's cancer plan. I also thank the Action on Smoking and Health Australia [ASH] group and all the other advocates who have fought so hard for this very important legislative change. I believe this legislation is extremely significant and that it will improve public health and the health of the people of New South Wales.
Motion agreed to.
Bill read a second time.
In Committee
Clause 1 agreed to.
Amendments, in globo by Mr Frank Sartor, agreed to:
No. 1 Page 2, clause 2 (1), line 5. Omit "1 January 2005". Insert instead "3 January 2005".
No. 2 Page 2, clause 2 (2), line 7. Omit "1 July 2007". Insert instead "2 July 2007".
No. 3 Page 4, schedule 1 [4], proposed section 11, line 12. Omit "means an". Insert instead ", in relation to a club, hotel, nightclub or casino, means the"
Clause 2 as amended agreed to.
Clauses 3 and 4 agreed to.
Mr ROBERT OAKESHOTT (Port Macquarie) [9.28 p.m.]: I move:
Page 4, schedule 1 [4], proposed section 11, line 13. Omit "or a casino private gaming area".
As I stated during the second reading stage, I believe there is a principle at stake here. If we all agree, as I suspect we do, that smoking is a threat to public health and to the health of the population of New South Wales, surely we need to be consistent in protecting employees and those who frequent premises such as clubs, hotels and casinos throughout this State.
Some myths about VIP rooms and high rollers rooms need to be corrected. They are not necessarily a huge revenue base for the casino or government. Some big whales could go there and rip the rug from underneath a government; significant government revenue is not at stake. Casinos make their money, like bookies, from the mug $10 punters who do not know exactly what they are doing. I am assuming the actions of the Government in exempting the high rollers room at the Star City Casino are based on trying to protect its revenue base from some big whales going to the only casino in New South Wales versus going to a casino in another State or another country. I suggest strongly that that would not be a big loss, if that is its concern.
Previously I mentioned staff at the high rollers room at the casino; and this is a court case waiting to happen. Under this bill it is acknowledged that a significant issue that needed to be addressed by the New South Wales Government has been addressed. By exempting the high rollers room at the Star City Casino, potentially the House has agreed that that staff are of a lesser category compared to staff at other workplaces. I strongly encourage the Government and the Opposition to consider that point, and consider the worth of the amendment. We are not doing the Star City Casino any favour by granting an exemption from the prohibition on smoking, but we are leaving it open to significant future legal action. I urge the Government to support my amendment. If the Government does not support it, as I suspect, over the coming months I would hope that the Minister considers the rights of the staff in the high rollers room at Star City Casino over any perceived rights of international tourists who might visit that room. I would have thought that the health of New South Wales workers would have taken priority.
Mr FRANK SARTOR (Rockdale—Minister for Energy and Utilities, Minister for Science and Medical Research, Minister Assisting the Minister for Health (Cancer), and Minister Assisting the Premier on the Arts) [9.32 p.m.]: I heard the comments of the honourable member for Port Macquarie, and understand where he is coming from. I make it clear that Star City Casino bid for a lot of its rooms to be exempted, but most of that was rejected. The only four rooms involved are the three inner sanctum rooms and the Endeavour Room. The VIP slot room was rejected as a possibility. With staff I visited the casino some months ago and inspected the various rooms. The gaming rooms do not allow smoking at the gaming tables, only in the corners of the room. In my view, it is a matter of time before the prohibition will extend to the casino as well; and that is why there will be annual review of this legislation.
Proposed section 11C makes it quite clear that the Minister is to review the casino's exemption annually, vis-à-vis the competition in other States and Territories. No-one can seriously say that prohibition on smoking in a pub or club in New South Wales will lead to patrons flocking to Victoria, unless they live on the border. I have been involved in a lot of discussions with Victoria and Queensland authorities in an endeavour to align our legislation. No-one can say that there will be a major capital outflow or financial benefit flowing from this State. But, when it comes to the high rollers, it is possible that that may happen. It is my greatest wish that all States agree on banning smoking in all hotels, clubs, and casinos, and that certainly is my intention. The Government does not wish to expose New South Wales to an unnecessary economic burden disproportionate to that of other States, given that this State, by virtue of the Federal tax system, already excessively subsidises other States—each year $2.9 billion is transferred to other States. The exemption will be reviewed annually. Proposed subsection 12 (2) states:
An exemption under this Part does not affect any duty a person may have under the Occupational Health and Safety Act 2000.
I hope that the casino will make sure it meets that obligation. It has already banned smoking at the tables, and smoking is allowed only in the extremities of those rooms. Hopefully with annual review and movement interstate we will be able to ban smoking completely in the casino. I am not prepared to accept the amendment at this stage.
Mr ROBERT OAKESHOTT (Port Macquarie) [9.35 p.m.]: We are so close to seeing the Minister have the courage of his convictions. All the arguments he presented were for consistency of principles in not allowing smoking in any rooms at the Star City Casino, as is the case with any clubs or pubs throughout New South Wales, for exactly the same reasons. I have used the term "VIP rooms", which refers to the Endeavour Room and another room, the name of which I missed.
Mr Frank Sartor: It is the three inner sanctum rooms and the Endeavour Room. The VIP slot room has been rejected.
Mr ROBERT OAKESHOTT: The Endeavour Room is the high-rollers room, although it is not a VIP room. That suggests, as I suspected, that the Government is concerned about its revenue base.
Mr Frank Sartor: And the State's economy.
Mr ROBERT OAKESHOTT: I raise the same point. Casinos do not make a great deal of money through the high-rollers room. If that is the argument we have to accept from the Government, I present a counter argument, which is one we have heard repeatedly tonight, about the costs to New South Wales health services of lung cancer, heart disease and associated illnesses related to smoking. I am sure, and am willing to make a high-roller gamble, that the costs to health services far outweigh the benefits of keeping inconsistent policy alive in New South Wales. Here is the chance, once and for all, to introduce consistent policy with the consistent message throughout New South Wales. I will not kick the Minister too hard on this, as I think it is a significant public health initiative and a great achievement that we have come this far. I strongly urge the Minister, the Government and any interest groups that are putting pressure on this matter, to accept the amendment. If they do not accept this amendment, I ask them to accept the direction for consistent policy in any future.
Mr FRANK SARTOR (Rockdale—Minister for Energy and Utilities, Minister for Science and Medical Research, Minister Assisting the Minister for Health (Cancer), and Minister Assisting the Premier on the Arts) [9.38 p.m.]: The issue of principle is that we should be absolutely uniform across the State. However, there is only one place in the State that is in direct competition, and that happens to be this place. We are limiting inconsistency as much as possible, and want to phase it out. This is a practical question, and we do not disagree with it directionally, but practically we have to be sensible about it. This is in direct competition with other States. It is not to do with State taxes, it is to do with the State's economy.
Question—That the amendment be agreed to—put.
Division called for. Standing Order 191 applied.
Ayes, 5
Mr Barr
Mr Draper
Ms Moore
Mr Oakeshott
Mr Torbay
Question resolved in the negative.
Amendment negatived.
Mr FRANK SARTOR (Rockdale—Minister for Energy and Utilities, Minister for Science and Medical Research, Minister Assisting the Minister for Health (Cancer), and Minister Assisting the Premier on the Arts) [9.44 p.m.], by leave: I move Government amendments Nos 4 to 14 in globo:
No. 4 Page 4, schedule 1 [4], proposed section 11A, line 19. Omit "1 January 2005 until 1 July 2005". Insert instead "3 January 2005 until 4 July 2005".
No. 5 Page 4, schedule 1 [4], proposed section 11A (1), line 20. Omit "1 January 2005 and before 1 July 2005". Insert instead "3 January 2005 and before 4 July 2005".
No. 6 Page 4, schedule 1 [4], proposed section 11A (2) (d), lines 29 and 30. Omit all the words on those lines. Insert instead:
(d) one area used substantially for the purposes of gambling (whether or not with gaming machines), but only in premises where there is more than one such area,
No. 7 Page 5, schedule 1 [4], proposed section 11B, line 2. Omit "1 July 2005 until 1 July 2007". Insert instead "4 July 2005 until 2 July 2007".
No. 8 Page 5, schedule 1 [4], proposed section 11B (2), line 5. Omit "1 July 2005 and before 1 July 2007". Insert instead "4 July 2005 and before 2 July 2007".
No. 9 Page 5, schedule 1 [4], proposed section 11B (2), line 7. Omit "an exempt". Insert instead "the exempt".
No. 10 Page 5, schedule 1 [4], proposed section 11B (3), line 8. Omit "An exempt". Insert instead "The exempt".
No. 11 Page 5, schedule 1 [4], proposed section 11B (3) (a), line 11. Omit "1 July 2005 and before 1 July 2006". Insert instead "4 July 2005 and before 3 July 2006".
No. 12 Page 5, schedule 1 [4], proposed section 11B (3) (b), line 12. Omit "1 July 2006 and before 1 July 2007". Insert instead "3 July 2006 and before 2 July 2007".
No. 13 Page 5, schedule 1 [4], proposed section 11B. Insert after line 12:
(4) Despite subsection (3), if the total area of all the rooms in the club, hotel, nightclub or casino does not exceed 100 square metres, the exempt area under this section, when expressed as a percentage of the total area of all the rooms in the club, hotel, nightclub or casino, must not exceed 50% on or after 4 July 2005 and before 2 July 2007.
No. 14 Page 5, schedule 1 [4], proposed section 11B. Insert after line 20:
(5) Subject to subsection (3), the Minister may authorise a club, hotel, nightclub or casino to set aside a second room (or part of a second room) as part of the exempt area under subsection (2). The granting of the authorisation and the authority conferred by the authorisation are subject to any requirements set out in the regulations (including with respect to the criteria to be met before an authorisation may be granted).
These amendments follow additional consultation with the hospitality industry. Industry representatives raised concerns about the fact that there are practical difficulties in implementing some of the provisions in the bill. The amendments do not alter the fact that the Government intends this bill to deliver significant health gains by reducing exposure to environmental tobacco smoke. The Government moved the amendments to assist industry with the practical difficulties in the transition from smoking to non-smoking in enclosed public areas. The first amendment relates to the definition of gaming area in the original share-the-air agreement.
The amendment to proposed section 11A (1) and (2) changes the words "gaming machine room" to "gaming area" to more closely reflect the wording of the voluntary joint statement by participants of the Joint Working Group on Smoking in Licensed Premises, or the share-the-air agreement. This will allow operators of premises to continue with the arrangements that they had voluntarily implemented as part of their obligations under the share-the-air agreement. The difficulty with the wording as it had been drafted was that it digressed from what had been agreed to. It was always the Government's intention to stick to the share-the-air agreement. The second amendment relates to the 25 per cent area rule, which will apply from July 2006 to July 2007.
The amendment to proposed section 11B (3) will exempt operators of very small establishments from reducing a smoking area from 15 per cent to 25 per cent between July 2006 and July 2007. Premises where the combined bar rooms, gaming machine rooms and recreation rooms total less than 100 square metres will be able to retain until July 2007 a smoking area that does not exceed 50 per cent of the room. This amendment acknowledges the fact that in very small premises it may be impractical for operators to set aside a 25 per cent smoking area, with the necessary partitions, barriers or spaces, from non-smoking areas. In health terms, the change to the proportion of the area allowed for smoking would be inconsequential. Accordingly, the Government has decided that this sensible and practical amendment will not have unintended consequences for small premises.
The final amendment relates to the single room issue—a second room for small functionally disadvantaged premises. The amendment to proposed section 11B (2) would allow the Minister to authorise a club, casino, hotel or nightclub to set aside a second room for smoking in highly exceptional circumstances. This is intended to allow some small premises with highly unusual configurations and numerous small rooms to designate more than one room as exempt areas provided that the total area of smoking rooms does not exceed the limits set in proposed section 11B (3) (a) and (b). Extremely narrow criteria would be established by regulation, which would have to be met before this provision applied to any premises.
It is not intended that these criteria will permit applications for more than a handful of premises where the rule has substantial unintended consequences, particularly in very small facilities. This amendment will simply allow some discretion in meeting unintended consequences, for example, where the nature of the configuration of a pub or club means that it is completely out of kilter with other restrictions. Finally, amendments have been made to the dates because, over the next few years, 1 July will always fall on a weekend. The amendments to the dates of the first of the month will allow each of the progressive phases to commence on the first working day, that is, the first Monday of each month. As I said earlier, the dates of the first of the month fall on very busy nights or weekends.
That places pressure on staff and disrupts patrons by changing smoking arrangements in the middle of a busy night. Industry representatives have suggested that this may cause difficulty for the enforcement of the bans. I draw the attention of honourable members to the incongruous notion that from midnight on 1 January 2005 we will have a different regime to the regime that applied on 31 December. This reasonable proposition will have no significant effect on the Government's proposals. The amendments will allow the changes to be implemented on the first Monday of the month to ease the pressure on staff and to allow them to make relevant changes to smoking conditions when there are few patrons in the premises. I commend the amendments to the Committee.
Mr BARRY O'FARRELL (Ku-ring-gai—Deputy Leader of the Opposition) [9.49 p.m.]: Notwithstanding what I said earlier, the Opposition was briefed on these amendments today. By and large they appear to be sensible. In the intervening period before the legislation is introduced in the Legislative Council we shall consult interested parties about the impact of the amendments. The Opposition will make a more formal contribution in the other place.
Amendments agreed to.
Schedule 1 as amended agreed to.
Schedule 2 agreed to.
Bill reported from Committee and report adopted.
Third reading ordered to stand as an order of the day.
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