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Issue 2, September 1994
ACT Gets Smoke-Free Legislation
On 20th September the ACT Parliament passed the Smoke-Free Areas (Enclosed Public Places) Act 1994, the first indoor air legislation in Australia. The bill had originally been suggested by the former health Minister, Wayne Berry, but he had been moved from this portfolio, and the bill in its final form was moved by the new Health Minister, Terry Connolly. The ACT has had years of tests of voluntary agreements on smoking restrictions in restaurants. This system had been extensively surveyed and found to be a failure.
There was, therefore, good public support for the legislation, but the entertainment industry, especially the Australian Hotels Association (AHA) fought the legislation and had delayed it considerably in a committee, chaired by an Independent, Michael Moore. Moore became convinced that businesses would lose custom due to the legislation. Whether this was due to the lobbying efforts of the Restaurants and Caterers Association or the AHA is not clear, but a number of health groups who tried to change this perception were not successful.
Moore introduced a series of amendments in which an exemption could be obtained if the premises complied with an air quality standard, Australian Standard, AS1668.2. It was pointed out that this standard is a comfort standard, and was never intended to specify air quality with relation to carcinogens, but the line that adequate air conditioning is enough has been pushed by the tobacco industry through a number of front companies in the air conditioning advisory business.
The ACT Parliament has 8 Labor members that form the minority government, 6 Liberals and 3 Independents. Moore's amendments were supported by the Liberals and carried 9-8. The Liberals were happy to take the credit for 'making the legislation workable' and
Liberal leader, Kate Carnell cast doubt on whether carcinogens really cause cancer. Moore became a bit testy when asked why no health groups had supported him.
The law will be gazetted on approx. 5th October and will come into effect 60 days later. All premises must be 60% smoke-free from then. In 12 months, they must be either totally smoke-free or 75% smoke-free if they apply for and are granted an exemption on the grounds that they comply with AS1668.2. The main area where such exemptions may be granted is licensed premises where alcohol is served. (Parts of hotels which are restaurants are treated as such). Other exemptions are nursing homes which have a common smoking area, provided they have a similar smoke-free area, and staged performances where smoking is part of a scripted performance.
The exemption under AS1668.2 must be applied for on a prescribed form and it is expected that it will need to be signed off by an accredited air conditioning expert. If an exemption is not granted there is appeal to the Administrative Appeals Tribunal. Occupiers are expected to take all reasonable steps to ensure that smoke does not stray into the smoke-free areas.
The question of what are the implications of the air-conditioning standard are hard to assess. In that this is a reasonably tough standard, it will be expensive to meet, so an optimistic view is that either businesses will not try, or they will find it too expensive both to get the inspection and to run the systems. A more pessimistic view is that the inspection will find that the standard can be met, but once the certification is obtained, the system will be turned down to save money. It is said that the AHA will launch a major campaign against the legislation, but this is not yet certain.
Weak Guidelines on ETS
After years of labouring, Worksafe, the National Occupational Health and Safety Commission has produced a weak 'Guidance Note on Passive Smoking in the Workplace' (June 1994). This was arrived at by a working party in which the activities of Richard Mulcahy of the AHA was chiefly noted. The paper has some good scientific material, but is studded with the term 'if practicable'. Thus an employer is told how to introduce a smoke-free office, 'if practicable'. The report talks about the 'hierarchy of controls' which is a concept used for unavoidable hazards in the workplace. The hierarchy is 'elimination of smoke, isolation of the hazard, engineering controls, and administrative controls'.
The reality is that tobacco smoke should not be treated as an unavoidable hazard or industrial pollutant. It is not necessary for any human endeavour. Mulcahy, the former head of the Tobacco Institute lobbied hard for this and would seem to have won a major victory. Worksafe has been a victim of the old 'Industrial Relations Club'. This is the employers, the governments and the Unions. Health is a bit player in these arrangements, and so, despite good scientific input Mulcahy had a huge influence. Apart from the 'if practicable' escape clause, there were other tobacco successes. The fact that it is 'guidance note' means that it is not as legally binding as a 'code of practice'. Also the idea that 'engineering controls' can be used is the new tactics of the tobacco industry and its front air conditioning advisers. The tactics are very successful, as the health groups are not fully aware of what is going on and are not succeeding in their lobbying (or not doing enough of it).
The industry now has a weak guidance note, an air conditioning standard built into the first smoke-free indoor air legislation in Australia, and there is a huge conference being held at the National Press Club in Canberra on 30th September to push the idea that air conditioning can get rid of indoor smoke. Bearing in mind the failure of the WA Health Department to prosecute Burswood Casino successfully on air quality, these are dangerous precedents indeed.
RCA Protests at Guidance Note
The Registered Clubs Association (RCA) wrote a very critical article in its journal, 'Club Life' complaining that the Worksafe 'Guidance Note' did not address the issue of clubs legal liability. What the RCA wanted was a code so that they could enforce smoke-free areas but claim 'it is not our fault- we are just enforcing the law'. What they have is a documents that leave it up in the air. It tells them how to go smoke-free, but if someone sues them they will be worried that there will be a big legal hassle on air conditioning evidence, and the lame excuse 'it was not practicable' may not suffice.
At least sensible people are realising that the underhand delaying tactics of the tobacco industry are merely making a legal nightmare. Eventually, governments will have to grasp the nettle, but we must keep lobbying to get this.
Action Point 1Write to the Federal Health Minister Carmen Lawrence at Parliament House Canberra 2600 and ask her for national legislation for smoke-free indoor air, based on smoking bans. Mention that the US NIOSH (National Institute of Occupational Safety and Health) standard says there should be a ban, unless there can be a separately ventilated smoking area with negative pressure relative to the rest of the building.
Weak Effort on NSW Child Smoking Child smoking in NSW is still common as can be seen by anyone with eyes (or a nose). In 1991 the age of selling to children was raised to 18 (not that there had been any prosecutions when it was 16), and the fine for selling to minors was raised to up to $5000. However since it was a defence that the child 'looked over 18' there were still no prosecutions. After some parliamentary criticism Minister Phillips put an ex police prosecutor on the job on a one year contract to do prosecutions.
Western Australia has had prosecutions with fines over $1000, but almost a year after the NSW prosecutor was appointed there have still been few prosecutions and none with enough publicity to actually deter sales. Discussions off the record with health staff reveal that the process is complicated. The issue falls into three possible areas- Local government who look after health inspectors, Health, who look after health promotion officers, and Police. Tobacconists are licensed by the Attorney-General's Department, but a survey showed that many people selling cigarettes are not licensed in any cases, so loss of licence can hardly be a big threat.
Dr Chesterfield-Evans wrote to Minister Phillips asking about the poor compliance of sales and the lack of prosecutions. The reply of 25th August claimed that:
"prosecutions are not always seen as the most appropriate manner to ensure that retailers are aware of the legislation and comply with its requirements. Research has indicated that a high level of compliance is achieved through the use of alternative methods to prosecutions such as warning letters and retailer education. ...It is of great concern to the Department that the NSMA assumes that as there have been no Departmental prosecutions to dates that there has not been increased compliance...it is my view that prosecutions should be seen as a an act of last resort, when all else has failed, and success should be judged on compliance rather than the number of prosecutions".
It is the opinion of a number of environmental health officers and public health officers that the legislation is currently not workable, because it is impossible to get a prosecution without involving a child in giving evidence, which naturally neither they nor their parents want.
Action Point 2 Write to NSW Health Minister Ron Phillips, Locked Mail Bag 961, Nth. Sydney 2059, and ask him to review the legislation on child smoking as children can still readily get cigarettes. Preferably cite an example you have seen.
Dunhill Golf Sponsorship for TV
South African health groups have asked for help in stopping a new televised golf championship between Australia, New Zealand and South Africa to be arranged by Rothmans. Initially it will be held in South Africa but in later years, Australia or NZ. Money will be given to the newly started Mandela fund for children, (which is calculated to make it OK there). Since established events involving 3 or more countries can apply for exemption to the Tobacco Advertising Prohibition Act, it could be staged here if Carmen Lawrence agreed or in NZ. And it can be telecast here from South Africa under the 'incidental' provisions even if Lawrence does not agree. Cunning eh?
Action Point 3 Write to the South African High Commissioner, Naude Steyn, State Circle, Yarralumla ACT 2600 Ask that South Africa prohibit tobacco sponsorship, including the Dunhill golf in the interest of both their health and ours.
Industry Commission Report
The Industry Commission has released its report on 'The Tobacco Growing and Manufacturing Industry' (Report No. 39, June 1994). The report was necessary to set a policy for the industry when the Tobacco Industry Support Plan (TISP) expires at the end of September 1995.
The bottom line of the new report is that there will be a free market except for import duty, which will start at 25% but be scaled down, by 5% a year in the first year, then 2.5% a year. Because tobacco is very labour-intensive, Australians cannot compete with developing countries. Until now the three multinationals, Philip Morris, Rothmans and British-American Tobacco (Wills) have bought 57% Australian leaf. The support schemes have also encouraged higher leaf quantity not quality.
Growers tearfully told TV reporters that they cannot compete and will go broke. Dr Chesterfield-Evans told the previous Industries Assistance Commission in 1991 that this would happen, but our submission was judged as beyond the terms of reference. The previous TISP advised growers to 'get big or get out'. Those who tried to 'get big' do have something of a gripe with a fickle government which took so long to do the right thing.
'Clear Air Dining Guide- The complete guide to smoke-free dining in NSW- 1994' produced by NSW Quit Campaign. Here is the guide that NSMA did not have the resources to complete. It is organised geographically and lists both totally and partially smoke-free restaurants. Smoke-Free sections are defined as permanent areas, clearly demarcated and comprising at least 30% of the restaurant. (As restaurateurs do not always tell the truth, we suggest you check first and give feedback to NSW Quit at (02) 818-5222. $4.95 at most newsagents.
'Smokescreen- A Guide to the Personal Risks and Global Effects of the Smoking Habit' by Barry J. Ford. Ford has set out to write a user-friendly guide to the tobacco issue with a bias towards health effects for people who want to quantify them. It therefore has quite a lot of figures, and is well referenced, but retains a good simplicity of expression with summary dot points at the end and a reasonable index. It is a well presented softback with colour photos and a potted global history of the weed. Former US Surgeon-General C. Everett Koop wrote the foreword and is quoted as saying 'During all of that time [as Surgeon-General] I felt the need for such a guide as this'. It bridges the gap between the glib pamphlet and the heavy journals. Recommended. Halcyon Press, $29.95 +$3pp in Aust. fax (09) 227-1295.
National Heart Replies to Update - July 94
Dr Paul Magnus has written to state: "The Heart Foundation didn't as you imply, 'get rid of' ASH. We actively opposed winding it down but didn't prevail over the ASH Council. They made a decision, as was their right". Fair enough, but ASH was down to one part-time person, which is fairly 'wound down' for a national lobbying body. Ed.
Tobacco Inquiry by November 11.
The Senate Standing Committee on Community Affairs will conduct an inquiry into the 'Tobacco Industry and the Costs of Tobacco-Related Illness, with reference to:-
a. A review of the current level of regulation of the manufacturing, advertising, promotion and sale of tobacco products; and
b. An exploration of the costs of tobacco-related illness to the Australian community and a review of the existing mechanisms for recouping these costs. The closing date for submissions is 11th November.
Further details from Dr Pauline Moore, Secretary, Standing Committee on Community Affairs, Parliament House Canberra ACT 2600, ph (06) 277-3515, fax 277-5829
Action Point 4
Write a short submission to the Tobacco Inquiry, particularly giving examples of tobacco promotions, or other harm done by the tobacco industry that you have seen personally.
Why not have an input to Update?
Our Address is: Box K860, Haymarket NSW 1240.
|The Non-Smokers' Movement of Australia Inc, Box K860, Haymarket NSW 1240.
|This page was last updated on 7th August, 2012.
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