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Legislative Assembly for the ACT: 2002 Week 11 Hansard (25 September) . . Page.. 3207 ..

MS MacDONALD (continuing):

means that the broader public knows it now. However, I am happy to concede that the measures taken in 1994 were an evolutionary step, not a revolutionary step. It is clear that the time is right for the next step in the evolution of smoking laws.

Mr Speaker, it is my understanding that the government has received advice that the government would not be held legally liable for passive smoking-related claims resulting from exposure in exempted premises, even though it is responsible for granting these exemptions. Given the rapidly evolving nature of this matter, where one precedent after another is being set, I would bet that it will not be long before we find that that advice is outdated. Maybe not now, maybe not soon, but somewhere down the track governments who allow smoke-filled work environments with exemptions will be held responsible. That advice is given in this current climate of an increasingly litigious society and during a public liability crisis, and it just doesn't seem to make sense to be so dismissive. After all, we are talking about heart disease and cancer; we are not talking about broken arms and emotional trauma.

But, Mr Speaker, whether the government is liable or not is not really the point. What matters is the fact that patrons have successfully sued clubs for passive smoking-related illness and we are expecting employees in the ACT to spend hours every day exposed to ETS. The exemption and disregard of basic OH&S issues has created two classes of workers-one protected from smoke-filled and hazardous environments like the one that we enjoy in this building, and a second class of workers who are unprotected from ETS because of a choice of their employment. I might say that sometimes they have no choice at all as to where they get employment. This is simply unfair and unwise, and it would be remiss of this or any government to allow this to continue.

Many workers involved in hospitality are unskilled and young. They often don't have the choice of other workers in moving to another industry where a smoke-free environment exists. While smokers have the choice to not smoke, non-smokers do not enjoy the luxury of choosing not to breathe.

The Smoke-free Areas (Enclosed Public Places) Act 1994 places a general prohibition on smoking in enclosed public places, with provisions to allow restaurants and liquor-licensed premises to obtain an exemption from this prohibition if specified criteria are met. In an exempt restaurant, smoking may occur in up to 25 per cent of the dining area. In exempt licensed premises, smoking may occur in up to 50 per cent of the public area of the premises. An exemption is valid for three years, after which a new application is required if a further exemption is sought.

Non-smoking dining is now well accepted in the ACT and elsewhere. In the ACT exempt restaurants have remained at 2 per cent to 4 per cent of the total number of restaurants and cafes. There are currently 10 premises with restaurant exemptions. In view of proprietors' reports of decreasing customer demand for smoking-permitted areas, together with the increasing popularity of outdoor dining, the demand for restaurant exemptions is likely to continue to diminish. The phasing out of restaurant exemptions can therefore be expected to not be contentious.

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