Butt Out When Out

From July 31 2006 the association of a social cigarette with a drink in public places in Western Australia will be no more.

The Tobacco Products Control Regulations 2006 made under the Tobacco Products Control Act 2006 prohibit smoking in all enclosed public places including those on licensed premises. The only exception in Western Australia will be the International Room at Burswood Casino

The legislation aims to further reduce community exposure to passive or second hand smoke.

A “public place” as determined by the Act means a place or vehicle that-
(a) the public, or a section of the public, is entitled to use; or
(b) is open to, or is being used by, the public, or a section of the public, whether on payment of money, by virtue of membership of a club or other body, by invitation, or otherwise.

A public place is enclosed when it has roof or ceiling, is enclosed by walls greater than 50%, or other vertical structure or coverings.

Smoking will continue to be permitted during private functions when an enclosed public place is used exclusively for an event (e.g. birthday celebration or wedding) because attendance is by invitation only and during the period of use or hire the area is not considered a public place.

Naturally these new changes also bring responsibilities for occupiers of enclosed public places. These include the display of signs at all public entrances to licensed premises, the duty to prevent the spread of smoke by providing adequate ventilation and educating employees to ensure they aware of their obligations under the new laws.

If someone is committing or commits an offence by smoking in an enclosed public place, the occupier of that place also commits an offence.

Further occupiers need to enforce the smoking ban as actively as they would enforce any other code of conduct or standards, like no service of alcohol to intoxicated people and dress standards.

The Act provides steps that an occupier or employee should follow when someone is smoking in an enclosed public place;

• Inform the person concerned that they are committing an offence;
• Request that the person stop smoking in the enclosed public place and to extinguish and properly dispose of the tobacco product; and
• If the person fails to comply with the request to stop smoking, request that the person leave the enclosed public place until the person has finished smoking.

Failure to comply with the new legislation will see a business or individual convicted of an offence and liable for a maximum penalty of up $2,000. Further daily penalties of $50 will apply if the offence is a continuing one. There are provisions under the legislation for infringement notices with a modified penalty to also be issued.

The enforcement of the legislation will be governed by environmental officers in local government authorities, police officers and officers from the Department of Health.

The success of the new legislation to reduce exposure to second hand smoke will only be as successful as the commitment shown by occupiers, employees, and the public to enforce the smoking ban. The psyche of the public needs to be one that, smoking in licensed premises is no longer tolerated, and is in fact illegal.

For further information on this subject please contact Michael Bruce - Partner on 08 9288 6865, Ian Curlewis - Partner on 08 9288 6756 or Bree Buxton on 08 9288 6861 or bree.buxton@lavanlegal.com.au

http://www.lavanlegal.com.au/publications/riskwatch/26July2006.html