Bars and clubs

Love the fact that you can head out for a night on the town, without coming home smelling like an ashtray? Western Australia has led the way in creating a smoke free culture around bars and nightclubs.

On 28 November 2004, WA Premier Geoff Gallop announced that new smoking restrictions would come into effect from 1 January 2005, with a total ban in enclosed places in July 2006. It was a major step forward to protect the health of the community.

Background

The WA Government announced its response to the “Review of the operations and effectiveness of Part IXB of the Health Act 1911 and the Health (Smoking in Enclosed Public Places) Regulations 1999” on 25 June 2003. Since that time ACOSH has actively campaigned in relation to the Government’s response and its deficiencies.

Stakeholder concerns

A key component of ACOSH’s ongoing work was to develop strategic relationships with other stakeholder groups. ACOSH identified potential key groups outside of our usual health constituency who would have an active interest in the Government’s policy and established contact with them.  Among these, ACOSH had ongoing and fruitful discussions with the Cabaret Owners Association (COA), as well as the Liquor, Hospitality & Miscellaneous Workers Union WA Branch (LHMU).

Another key player is the Australian Hotels Association WA (AHA). Clearly, there are hotels with patrons in every electorate in WA and in many places hotels play an important role in community life. Evidently, some pubs are economically marginal, particularly in regional and remote areas. This was highlighted in an article in The Australian newspaper (page 4: 23/9/03) that outlined how the Australian Hotels Association (AHA) was lobbying backbenchers on the liquor licensing laws.

ACOSH is aware of the AHA’s position on smoke free laws; these have been articulated in various media interviews over the years. The Executive Officer of ACOSH met with representatives of the AHA to discuss this on a couple of occasions; it is quite apparent the AHA is strongly opposed to “smoking bans in pubs”. ACOSH had a “Fact Sheet” printed in September 2003 and mailed it to all WA pubs and clubs. It was designed to get accurate information out into the hospitality sector and hopefully dispel a few scare tactic myths that are perpetuated by the AHA.

Nightclub operators contacted ACOSH within days of the Government announcement, it was through those initial calls that we established contact with the Cabaret Owners Association. Their concerns were about the lack of consistency in the proposed new regulations between nightclub owners and other operators in the hospitality sector (particularly “Special License Facilities” which have “late licenses” that would operate under the same rules as hotels and bars) with whom they had come to compete for patronage.

The COA had major criticisms regarding the lack of consultation. The COA expressed to ACOSH that they had no objections to going smoke free at the same time. While ACOSH was not concerned with the anti-competitive nature of the proposed new regulations, ACOSH was very concerned with the mixed message the new “regulations” would send to young people. This being very obvious in entertainment districts such as Northbridge, where similar businesses operating side by side would have different “smoking rules” on the basis of the kind of license they held. No rationale for this component of the Government’s response to the Review’s report has been given in public, except in an interview with the Premier Geoff Gallop on 6PR (28/10/03).

Government discussions

ACOSH initiated discussions with Government and met with Sue Ellery MLC, Parliamentary Secretary to the Minister for Health (Hon. Jim McGinty MLA, Attorney General; Minister for Health; Electoral Affairs). ACOSH was consistently informed that the Government’s position was non-negotiable, therefore we were surprised to see amendments to the draft legislation tabled in Parliament (10 December 2003 Gazettal Notice 194). These amendments appeared to have been driven by concerns expressed by the AHA (WA).

In December 2003, ACOSH wrote to all members of the WA Parliament to point out the problems with the government’s position and sought support for a “disallowance motion” on the new regulations. The Greens (WA) who held the balance of power in the Upper House entered discussions with ACOSH about this and placed notice of a disallowance motion on the regulations in Legislative Council.

Crown Casino

Early in April 2004, a petition signed by over 500 casino workers from the Crown Casino (Previously Burswood Casino) was presented by a delegation of casino workers to a member of the Government in the Upper House. This outlined the worker’s concerns with the Government’s failure to lift the exemptions for the International Gaming Room at the Crown Casino. The workers had to wear balaclavas to protect their identities due to intimidation by their employer in relation to participating in any protest at Parliament House. ACOSH supported this action.

The disallowance motion was debated in the first week of May 2000 and The Greens spoke to it on the grounds of public health. The debate went late into the night with the opposition (Liberal Party) supporting the disallowance motion on the basis of the lack of fairness for nightclub owners. The debate was adjourned with the Leader of the Opposition (Hon. Colin Barnett) seeking to negotiate a solution with the Minister for Health that accommodated the Cabaret owners. ACOSH briefed The Greens and then discussions were held between The Greens and the Government with a solution being negotiated. The amendments were eventually passed on the proviso that the Government bring forward the next review from 2007 to 2005. The Government agreed to this and also put the whole hospitality sector on notice that a definite end date to the current exemptions enjoyed by the hospitality sector would be key part of that review. ACOSH has subsequently lobbied successfully to get the dates of the next review amended in the Health Act (1911).

After the WA Governments announcement all other Australian jurisdictions, except for the Northern Territory, announced dates for when the hospitality sector will go smoke free. New South Wales and Victoria announced going smoke free from July 2007. Tasmania announced they will have 100% smoke free pubs and clubs by 1 January 2006. Queensland has announced that from 1 July 2006 smoking will be banned in 100% of indoor areas of liquor licensed premises; as well as in all outdoor areas where food or beverages are served and are contiguous to the operations within a business. South Australia and the Australian Capital Territory have had smoke free pubs and clubs from 1 October 2007 and 1 December 2006 respectively.

Occupational Safety and Health Act (1984) and WorkSafe WA

As a part of the Government’s response to the “Review of the operations and effectiveness of Part IXB of the Health Act 1911 and the Health (Smoking in Enclosed Public Places) Regulations 1999”, the Health Minister instructed WorkSafe to develop a Code of Conduct to protect the health and safety of employees.

ACOSH had meetings with the Minister for Consumer and Employment Protection (DOCEP) and the Director General of DOCEP to discuss the Government’s announcement and to discuss the lack of enforcement of OH&S laws by WorkSafe in relation to smoky hospitality venues. At that point ACOSH was advised the only barrier to prosecutions proceeding was determining a “threshold level” of environmental tobacco smoke in the air that was unsafe.

ACOSH also took advice from a distinguished West Australian QC, Mr Wayne Martin.  Mr Martin made three points: Firstly, “…there would be I think nothing to prevent any person making a compliant under the OS&H Act.” Secondly, “It would be up to WorkSafe as to whether or not a prosecution was brought”. Thirdly, “…if, in such a prosecution it was established beyond reasonable doubt that a workplace such as a hospitality venue in which smoking was occurring was hazardous to employees working there, the prosecution should succeed.” This was covered in a front page story on the West Australian Newspaper (11/7/03).

Furthermore, the Hon. John Kobelke MLA, Minister for Consumer and Employment Protection, stated:

“The duty of care obligations imposed under the Occupational Safety and Health Act 1984 and in particular the workplace provisions of the Occupational Safety and Health Regulations 1996 continue to apply, not withstanding any exemptions under the Health Act 1911.”

Subsequently, the National Occupational Health and Safety Commission has ratified the Guidance Note On The Elimination Of Environmental Tobacco Smoke In The Workplace (NOHSC: 3019 (2003)).

This document states that:

“The primary objective in controlling employee exposure to ETS in the workplace must lie in eliminating ETS. Workplace arrangements should ensure that no one in the workplace is exposed to ETS.”

“Employers are obliged to provide healthy and safe workplaces. Allowing workers and others to harm persons through passive smoking in the workplace contravenes this obligation.”

“Elimination of exposure to ETS should be achieved by the following measures: 1. Prohibition of smoking in the workplace…”

“The Creation of smoke-free indoor areas separated from designated smoking areas has only a limited effect on the concentration of ETS in the non-smoking sections. Separation of smokers from non-smokers within a space does not affect either the smoke density or the ventilation rate, and so cannot reduce the average ETS concentration.”

“This Guidance Note does not endorse the use of Australian standard 1668.2-2002, The use of Ventilation and Air-conditioning in Buildings, Part 2: Ventilation Design for Indoor Air Contaminant Control. Mechanical dilution ventilation is not an appropriate method for eliminating exposure to ETS for any given level of smoking.”

The Guidance Note was subsequently ratified by the WA WorkSafe Commission in December 2003. This made the Guidance Note a key Government policy document in relation to ETS in West Australian work places. ACOSH subsequently wrote to the Director General of DOCEP arguing that given that there is no safe threshold level and given substance of the recently ratified Guidance Note, ACOSH could see no reason as to why WorkSafe cannot proceed with enforcing the Occupational Safety and Health Act 1984 and its Regulations to work place smoking in the hospitality industry immediately.

ACOSH also pursued the question of the development of the “Code of Conduct” in the light of the Guidance Note and its clear inconsistencies with the position taken by the Government in June 2003. ACOSH was advised in March 2004 that the WorkSafe Commission had decided to not develop the “Code of Conduct” and “advised the Minister that further practical guidance in the form of a Code is not necessary at this point in time.”

ACOSH has continued to highlight the issues surrounding WorkSafe and the inconsistencies surrounding environmental tobacco smoke in work places in light of the “Guidance Note”. ACOSH is also in receipt of copies of complaints that eminent West Australian doctors have made to the WorkSafe Commissioner over smoky bars that they have observed. The first complaint (made in April 2003) has received a response that was unsatisfactory in that the complaint has not been substantially addressed. The WorkSafe Commission eventually wrote to the complainant about the issue of “practicability as it applies to the duty of care that is specified in the Occupational Safety and Health Act 1984.”

End date announced in WA

On 28 November 2004, WA Premier Geoff Gallop announced that new smoking restrictions would come into effect from 1 January 2005, with a total ban in enclosed places in July 2006.

Dr Gallop said changes to the State’s Health Regulations would see the smoking ban introduced in three stages over 19 months:

  • From 1 January 2005, an industry code of practice in licensed venues would prohibit smoking within one metre of the bar;
  • Smoking limited to one room only in any licensed premises by 1 November 2005; and
  • A total smoking ban in all enclosed public places by July 2006.

The Premier said the question of smoking in the International Room at Crown Casino would be addressed in review of smoking regulations next year.

A ban on smoking within five metres of a State Government building entrance and 10 metre ban from air-conditioning vents were enforced from 1 January 2005. This applied to offices, hospitals, courts and police stations.

From 31 July 2006, the Tobacco Products Control Regulations 2006 made under the Tobacco Products Control Act 2006 prohibits smoking in all enclosed public places including those on licensed premises. The only exeception to this is the Crown Casio’s International Room. This means that in addition to venues which were required to be smoke free prior to the 31st of July 2006 (e.g. shopping centres, theatres, airports, cafes and restaurants etc.), venues such as pubs, sporting clubs, night clubs and licensed restaurants bars now also required to be smoke free inside.

General information is available for occupiers of enclosed public places, enforcement officer and the general public on this link