10th October 2007 Special Edition
SPECIAL EDITION BRIEFLY
No-smoking Laws and their Impact on Councils
As of midnight on 31 October 2007 all enclosed areas in liquor licensed premises must be 100% no-smoking in accordance with Section 46 of the Tobacco Products Regulation Act 1997. Hospitality workers will then have a legal obligation to ensure that patrons of their venues do not smoke in any enclosed areas.
The changes to the tobacco laws are likely to result in there being a greater patron demand for outdoor areas. It is anticipated that this will lead to councils experiencing a higher demand for permits to use roads for business purposes pursuant to Section 222 of the Local Government Act 1999. In addition, more people will step outside venues and into public places, including footpaths (being roads), in order to smoke. This will likely result in an increase in the amount of litter on roads and other public places, particularly cigarette butts, as well as the potential for disturbances to neighbouring residents.
In the lead up to these changes councils are therefore considering the means by which they may reduce the impact of these no-smoking laws on public places and on neighbouring residents.
It is not an option for councils to make by-laws which prohibit smoking on roads, as councils do not have the power to do so. However, where councils issue permits for the use of roads for business purposes (e.g. outdoor dining permits) they are entitled to place such conditions on those permits as they consider appropriate. The power to impose conditions may be utilised by councils to ensure that venues are taking appropriate measures to avoid an increase in litter and unreasonable noise for neighbouring properties.
In the event that a permit holder fails to comply with a condition of the permit, councils may revoke the permit.
Councils also have the power to represent community interests when applications are made to the Liquor Licensing Commission. This will include raising concerns as to the potential for any licence to create disturbances for neighbouring residents.
In the future climate therefore, the provision or otherwise of an outdoor dining permit is likely to take on a more crucial role in negotiations as outdoor spaces become more valuable to venues. Councils may, in specified circumstances, be entitled to revoke an outdoor dining permit which has already been issued or indeed refuse to renew it when problems exist in relation to the new laws.
Whilst the specific provisions of the Tobacco Products Regulation Act 1997 are not directly relevant to councils, the effect of that legislation is. Whilst there is room for further review of the legislation, we consider that councils may utilise their current powers in the meantime to minimise the impact of these new laws on their communities.
For further information on this article, please contact Paul Kelly on (08) 8210 1249 or
email: pkelly@normans.com.au
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