23 July 2009

Court upholds NSW Health Smoke Free Environment Act

NSW Chief Health Officer, Dr Kerry Chant, has welcomed a landmark court decision that further clarifies the Smoke Free Environment Act and will assist in greater compliance by NSW clubs and pubs.

Dr Chant said NSW Health had prosecuted Kemps Creek Sporting and Bowling Club for an alleged breach of S8 of the Smoke Free Environment Act, which prohibits occupiers of enclosed public places from allowing their patrons and visitors to smoke in that place.

Magistrate of the Liverpool Local Court, Mr Bugden, published his decision in favour of NSW Health on July 10, 2009. However, Mr Bugden reserved his decision on an appropriate penalty until July 16, when he imposed a penalty of $1500 and ordered the club to pay court costs.

"The purpose of public health legislation is to safeguard public health and protect consumers," Dr Chant said.

"NSW Health's experience is that most businesses either voluntarily comply with the legislation or implement measures to make them compliant in response to warnings about breaches of the Act.

"However, when this is not the case, NSW Health is obliged to ensure that the legislation is upheld.''

Dr Chant said last September environmental health officers from Sydney South West Area Health Service observed patrons smoking in an enclosed gaming room at Kemps Creek Sporting and Bowling Club.

"The room, which contained poker machines, had bi-fold doors that opened out on to a large uncovered terrace,'' Dr Chant said.

"Magistrate Bugden found that the club's poker machine room and the outdoor terrace were, in fact, two areas - one with a roof where smoking should not occur and the other, an outdoor terrace area where smoking could occur.

Dr Chant said today's decision followed a test case involving NSW Health and Dubbo RSL over what defined an enclosed smoking area.

"The Kemps Creek Sporting and Bowling Club case is the first that has applied the Supreme Court's decision regarding Dubbo RSL and, as such, is an important decision,'' Dr Chant said.

Dr Chant said she hoped the findings would assist other businesses in gaining a better understanding of the law.

For a range of health information, go online to www.health.nsw.gov.au