Page 614 - Week 02 - Thursday, 17 February 2005
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It is extraordinary, then, that the government proposes a regulation that will define an unenclosed space as any space with just a quarter or more of its wall and ceiling surfaces open and can provide no scientific or health analysis to support that definition as safe or even a reasonably safe environment where people can smoke in the company of others, including workers and patrons.
One argument that has been put by government is that the regulation is based on the legal interpretation of words within the original legislation. I would have thought that, if the health interests of the Canberra community were paramount in government thinking, the intent of the original act would have been pursued rather than simply a legalistic analysis of the original drafting. The intent of the original bill and, I would have thought, this amendment was to ensure that smoking in public places only occurs in a safe and open environment.
I would like to draw members’ attention to a regulatory impact statement prepared for the government by Allen Consulting Group to address the proposed changes to the act. The government has had this analysis before it since June last year. However, it was released only last week. It is available on the health department web site under “publications” and makes a very clear argument that a mostly enclosed space is particularly unhealthy and that it is only in completely or very largely open spaces where the health impact is minimised. To quote from page 26 of the report:
The degree of enclosure is slight before there may be an ETS-related problem.
The regulatory impact statement also quotes extensively an analysis of comparative risk, taking the view that there are prima facie grounds for reducing public risk, placing the burden of proof on the person wishing to produce industry risk, and that public risk should be minimised as a first option. A recent Californian Air Resources Board report on environmental tobacco smoke makes it clear that you can have a very significant and harmful exposure in crowded outdoor spaces, the only difference being the smoke clears faster after smoking stops. And it has proposed to list this as toxic air contaminant.
All the evidence, then, would suggest that the 75 per cent rule does not minimise public risk. For the health department, nonetheless, to support such an approach is an extraordinary abrogation of responsibility.
Of course, we do need to recognise that there is a lot of pressure coming from clubs and hotels in the public smoking debate. The arguments coming from those businesses are that, somehow, anything that restricts tobacco smoking will be bad for the drinking and pokie business. I can recall the heated arguments about the introduction of smoke-free restaurants not so long ago. Now we are appalled when we enter a smoke-filled atmosphere in a restaurant and we regard that as the norm. It seems clear to me that the restaurant trade is now booming.
In regard to clubs and taverns, New York provides a case in point. In 2002, James McBratney, president of the Staten Island Restaurant and Tavern Association, was fiercely outspoken in his opposition to the elimination of smoking indoors in New York. A fortnight ago he was reported as admitting that he has seen no fall-off in business. He added that, not only did customers actually like it, so did he. The courage of this man in
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