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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-12 Daily Xml
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LOCAL GOVERNMENT (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2008. Page 471.)

The Hon. M. PARNELL (21:17): The Greens are pleased to support this bill which allows local councils to make by-laws prohibiting smoking in specified public places. This bill is one of very many that have been introduced into this place in the past two years. Most of the bills have sought to protect people from the dangers of passive smoking by specifying certain places where smoking should not occur. We have had bills looking at preventing smoking at the Royal Show, the Christmas Pageant and bus stops and, in fact, I introduced a bill to this place to prevent smoking at children's playgrounds on the basis that if there was any one place where children should rule and not run the risk of passive smoking, then it is a playground.

This approach is different. Under the honourable member's approach, he is giving the power to local councils to decide which public places in their area should be made off limits for smoking. In consultation with local government over my bill that related to smoking in playgrounds, I had very many councils write back to me agreeing that that was an appropriate thing to do, but some councils wrote back and thought that my bill did not go far enough. They supported the idea of councils being able to ban smoking in places other than playgrounds. It seems that the honourable member's bill gives councils such a power.

In the hands of progressive councils, these new powers will no doubt make a number of places off limits to smoking—in particular, public places where people aggregate and where children are present—and that will provide a level of protection for those people from passive smoking. However, some councils may choose not to take advantage of this legislation and, to those councils—we will call them the recalcitrant councils—I think there is still a role for site-specific legislation. With those brief words, I congratulate the honourable member on bringing this bill before us. I think it is a sensible bill and I urge all honourable members to support it.

The Hon. R.P. WORTLEY (21:19): The government does not support the bill. While the intent of the bill—to reduce community exposure to secondhand smoke—is recognised, the government cannot support the bill on a number of grounds.

Non-smokers are frequently subjected to unwanted secondhand smoke in public places. Smokers sometimes choose to light up on the footpath outside buildings, at bus stops and train stations, outdoor dining areas, out the front of Parliament House, at the beach, in crowds at outdoor sporting venues and even sometimes at children's playgrounds.

Some secondhand smoke inevitably wafts over the mouths and noses of non-smokers, causing at least annoyance and irritation, and sometimes a degree of discomfort, or worse. Although smokers should be free to indulge their habit in private and among consenting adults, there is also a public interest—

Members interjecting:

The Hon. R.P. WORTLEY: Did I say something funny? I must have missed it. Although smokers should be free to indulge their habit in private and among consenting adults, there is also a public interest in allowing non-smokers to breathe air that is free of pollutants from secondhand cigarette smoke. The government wants to strike an appropriate balance between the legitimate interests of both smokers and non-smokers. To strike that balance, it is necessary to consider precisely:

how, when and where any new restrictions on smoking might be imposed and enforced;

whether it should be local government alone that enforces any such restrictions;

the extent to which any exemptions or exceptions should be allowed;

the level of penalties that might be applied;

the cost of enforcement, so that enforcement is financially practical; and

the possible effect upon businesses that may cater for both smokers and non-smokers.

Unfortunately, this bill is a blunt instrument that has been prepared without fully considering these matters. For example, it would permit a council to make a by-law to prohibit smoking in any defined public place. The term 'public place' is defined in section 4 of the act to include private land to which the public has access. One can envisage the problems in the possible application of so broad a power.

A retail shop may be considered as a public place because it is private land to which the public has access. A shop owner may be willing to allow smoking on his or her premises, especially if, for example, it is a tobacconist's shop. It is not clear why a council should have the power to override a shop owner's wishes and make it an offence to smoke, even inside a tobacconist's shop.

Councils have not sought powers as broad as this. Correspondence that the government has received from the City of Port Adelaide Enfield and a number of other councils proposes obtaining the power only to make by-laws to prohibit smoking on local government land (for example, children's playgrounds) and on roads, especially in relation to bus stops and outdoor dining areas.

I am surprised that the honourable member seeks, in his bill, to remove any flexibility or discretion from local government to set penalties that a council regards as appropriate or financially practical, having regard to the costs of enforcement. Section 246 of the Local Government Act 1999 provides that penalties for breaching by-laws cannot be higher than $750, and an expiation fee cannot be higher than 25 per cent of the maximum penalty. Therefore, the highest expiation fee that a council can set for breach of any by-law is currently $187.50.

Although this is the maximum, many offences created under council by-laws attract a much lower expiation fee. These penalties must be reviewed every seven years, when by-laws automatically expire. This bill takes no account of future inflation and would prevent councils from reviewing their penalties as they are required to do with all other by-laws.

The maximum penalty of $200 set by this bill would make it financially impractical for any council to try to defend its issue of an expiation notice if a smoker wished to exercise a right to challenge the matter in court. This aspect of the bill takes no account of the requirements of administering and enforcing these proposed penalties. Frankly, it runs the risk that many councils would simply choose not to exercise the power that this bill would confer upon them.

The honourable member has also indicated that he has received support from the Lance Armstrong Foundation in relation to his amendment. The government's position on this bill is based on the consideration of advice and opinion provided by a broad range of individuals and organisations, including those put forward by the Cancer Council and the Lance Armstrong Foundation.

The Tour Down Under already has in place several smoke-free initiatives for next year, including the designation of the tour village and official corporate hospitality areas as smoke free.

There will also be signage on display in public areas to encourage smokers to consider the comfort of others and desist from smoking. For the combination of reasons that I have described, the government cannot support this bill.

The Hon. D.G.E. HOOD (21:25): I will be very brief. Just to state our position at the outset, Family First will support the bill. We do so with some reservation because, to be honest, we do not think this is a perfect bill, although we think it is a step in the right direction, hence our support for it. The concern that we have with the proposed legislation is the possibility of very different regulations occurring across council boundaries. Of course, it would be difficult for people to know where they could and could not smoke, so it would necessitate very good signage in those areas. Nonetheless, we think that there is sufficient merit in this proposed legislation to support it, so we will.

The Hon. R.I. LUCAS (21:26): I rise to indicate that I cannot support the proposed legislation. I guess I feel uncomfortable with the fact that I am almost in agreement with some parts of what the Hon. Mr Wortley has said, which almost makes me reconsider—

Members interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The Hon. Mr Lucas has the call.

The Hon. R.I. LUCAS: —my position. Politics makes strange bedfellows on occasions. At the outset, I indicate that I have spoken on tobacco advertising, tobacco promotion and tobacco regulation and restriction legislation for 20 years or so, ever since the lofty days of John Cornwall, the then minister for health, who introduced tobacco restriction legislation back in the 1980s. As I have indicated on a number of occasions, I am not a smoker; I have had one puff in my life at the age of seven, which my father gave me, and that was the—

The Hon. R.D. Lawson: Did you inhale?

The Hon. R.I. LUCAS: I inhaled, coughed, hated it and never tried it, or similar products, since. There are some members in this chamber who are—I do not see them at the moment, actually; they seem to have disappeared from the chamber—

The Hon. Sandra Kanck: They've gone outside for a smoke.

The Hon. R.I. LUCAS: They've gone out for their last smoke. Some members in this chamber are prolific smokers, but I do not come from that particular perspective. My father, who was a very heavy smoker, died of lung cancer, so I am aware of the considerable health concerns relating to tobacco smoking.

From my viewpoint, the bottom line in relation to tobacco is that, unless we as a community ultimately ban it as a product and say that it is a forbidden and prohibited substance or whatever else it is, there ought to be at least some rights for people who choose to smoke a legal product. We have steadily introduced an increasing number of restrictions over the years which most of us, including me, have supported. I think those restrictions have been beneficial, particularly in relation to enclosed spaces. I think the changes made in relation to restaurants and food outlets—which were introduced under the former Liberal government—were terrific changes, and one can see the good sense in a number of other changes along those lines.

However, the notion that someone can go to a cliff, or somewhere, by themselves and not be within a bull's roar of anybody else who is going to suffer from passive smoking and, as a result of the whim of a local council somewhere in South Australia, find themselves subject to a penalty of up to $200, or an expiation fee of $20, for smoking a legal product is something that I cannot support.

In the end there has to be a balance in relation to these issues. Ultimately, if governments (or parliaments more particularly) take a decision to make it a prohibited substance and say, 'Okay, no-one can smoke,' then fine—drive everyone into gaol or into the sea or drown them at birth or whatever it might happen to be. Ultimately, it is still a legal product and, in my view, people ought to be able to smoke somewhere.

My view is that if a decision like this is going to be taken then, frankly, I think state parliament ought to be making the decision. With the greatest of respect to some of my friends in local government, I do not believe that they are the ones who ought to be making these particular decisions. I know they will strenuously disagree with me and say that they ought to be, but they are entitled to their view and, as a member of state parliament, I am entitled to my view in relation to this issue.

One of the concerns I have is that, potentially, you may have a situation where, under the legislation, a council can specify a public place—it can specify all the public places in its area. Port Adelaide Enfield Council, if it so wishes, could introduce a particular restriction on all public places within its council area but its neighbouring council (Salisbury, for instance) may well not, under a particular council regime. In any public place within the Port Adelaide Enfield Council area, you will be committing an offence if you smoke in a public place but, in the neighbouring council (Salisbury), you will not be. In the next council (which might be the Tea Tree Gully council) you will be committing an offence; in the one underneath you will not be committing an offence; in the one to the north you will be committing an offence.

The Hon. Sandra Kanck: The problem is that this government has said that it has to be up to local government to take action.

The Hon. R.I. LUCAS: It might have; however, I am saying that I do not believe it ought to be local government. In the end you are going to have a situation where if the boundary line between Port Adelaide Enfield Council is Main North Road (I do not know what it is), on one side of the road you may be committing an offence and, on the other side of the road, you may not be, but how on earth is an individual going to know? The draft legislation states that, if it is a specific area, a particular area like a playground, it requires signs to go up.

I know of some people in local councils who will want to restrict it right throughout their area. Some of them will do it in particular areas and some will restrict it right across the board. Ultimately, that decision is up to them. I suspect, in the first instance, they might do it in a few areas but the legislation does allow them to ban it completely. Frankly, if you are a salesperson and a smoker who is driving around, you are going to have to know exactly where the boundaries of the local councils are and you will need to know which ones have introduced bans in relation to smoking and which ones have not.

As I said, I am not a smoker so it is not going to impact on me. However, the President, the Hon. Mr Gazzola and others are going to have to know where the boundary lines are and what the definition of a public place will be in particular areas. I understand the goals in relation to the restrictions on smoking. Some of them have been successful in reducing cigarette smoking and some have not. However, I cannot support a notion whereby local councils can willy-nilly make decisions, either blanket or in part, across the whole of their particular areas.

Ultimately, if the Hon. Mr Sneath and the Hon. Mr Gazzola want to sneak out to the side of Parliament House (or wherever it is) or into the courtyard and hide in the bushes to have a smoke, and there is nobody else there so that all they are doing is imposing a potential dose of ill health upon themselves and each other, then I think they ought to be entitled to do it. The Hon. Mr Ridgway, I think, indicated that the Adelaide City Council has publicly indicated that it is one of the councils (together with Port Adelaide Enfield and another) that is interested in introducing some bans, so you may well have that situation. I have a couple of members in my family who are smokers; one of whom works in a city building block. What do they do if they are addicted to smoking?

The Hon. Sandra Kanck: Chew some gum.

The Hon. R.I. LUCAS: Okay, that's easy to say—chew some gum or give it up—but it is an addiction. They do smoke, so what do they do from nine till five during the day? If the city council has banned it, say, from 9 o'clock in the morning till 5 o'clock at night, what do they do?

They actually have a smoke at lunchtime. If they get away at morning tea or afternoon tea, they have a smoke as well and that gets them through their particular day. That is their vice and their addiction. The rest of us might not have that one, but we probably have other vices and addictions that we may or may not want to talk about publicly, but that is the particular problem that they have.

As I said, it is a legal product, so what do they do from nine till five? Do they take the punt of sneaking down the back into an alleyway and having a smoke and maybe getting done by a city council inspector and then having to pay a fine? I do not know.

I have seen the well-intentioned endeavours of some people trying to give up smoking who have had five or six goes at it. Sometimes it lasts for a week and sometimes it lasts for three months but, inevitably, they seem to go back to it. They have had five or six goes at chewing gum, putting on patches, hypnosis and a whole variety of other things, but ultimately they are addicted to the product and that is their particular problem. For all those reasons, I indicate that I cannot support it.

The Hon. R.D. LAWSON (21:36): I was not going to speak on this. In fact, I was disinclined to support this bill until I heard the feeble reasons of the government for not supporting it. Frankly, I would not want to be associated with the sort of reasoning that was advanced by the Hon. Russell Wortley.

This comes from a government which professes to be anti-smoking and pro-health and, at every opportunity, issues press releases and makes statements suggesting that tobacco is a great evil and, yet, when an opportunity is presented to it to provide some limit on smoking, the government simply does not accept it, and the reason for that, of course, is that somebody else made the proposal. It is very typical of this government that, if somebody else has a good idea and puts it forward, the government will not accept it.

I think there are a couple of things that ought to be placed very briefly on the record. There are two forms of protection in this bill. One is that these will be by-laws which, of course, can be disallowed by resolution of either house if the by-laws are so framed as to be entirely unreasonable, and that is an important provision. Another important provision is contained in clause 4, as follows:

If a council makes a by-law under this section, notices setting out the effect of the by-law must be erected in such numbers and in positions of such prominence that the signs are likely to be seen by persons within the public place.

That means that, in the case suggested by the Hon. Rob Lucas of somebody on a cliff, councils simply will not put signs up everywhere, because that will not be practicable. They will have to limit the areas, and in fact the proposed legislation says 'to specified public places'. It will simply not be possible for a council to have a blanket exclusion of smoking in all public places within their area because it will be physically impossible to erect sufficient signs, so that is one important protection included by the honourable member.

It is also suggested that this will lead to inconsistencies, that on one side of Port Road there will be one regulation and on the other side there might be another. That, of course, is exactly the situation now where councils have the power to make by-laws. Many of them make similar by-laws but many of them are different. You can keep two dogs on one side of Port Road but, on the other side, only one; so many cats, and so forth. We accept in our community that local councils have power to make different regulations, and it is up to people to familiarise themselves with the rules.

I am a former smoker. I am not presently a smoker, and I am not anti-tobacco, but I do not think this measure will have the very deleterious effects which have been suggested by some of its opponents. I will support the bill.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (21:40): I thank members for their contribution to my private member's bill to give local government the power to prescribe designated public places as smoke free. I will spend a few moments talking about that. The intention of the bill is to allow local councils to determine these areas under their jurisdiction where families, children and people congregate. The beach is one place about which the Mayor of the City of Port Adelaide Enfield, Gary Johanson, and some of his councillors have raised concerns, and I think a motion has gone to the Local Government Association asking it to talk to the government about such a mechanism.

We know that Bondi's council in New South Wales banned smoking on that beach in 2003 because it wanted to promote the healthy benefits of a clean and fresh environment that was free not only of smoke but also of the litter caused by cigarette butts. The Hon. Mark Parnell spoke of his piece of legislation that involved children's playgrounds. It seems logical that people should not smoke in a playground, which, as he said, is by and large a kids' domain and where people should have the right to assume they will not be subject to second-hand tobacco smoke. Similarly, people want to spend their recreation time in parks and gardens and have a barbecue, and I live near Mitcham Reserve—

The Hon. A. Bressington interjecting:

The Hon. D.W. RIDGWAY: The Hon. Ann Bressington interjects, saying, 'And have a beer.' When I have a beer, the person next to me does not get drunk. As you know, Mr President, the thing about cigarette smoke is that it drifts in the breeze and can affect the person next to them, so I think parks and gardens should be included in this measure.

My colleague the Hon. Rob Lucas talked about some members sneaking around the corner here at Parliament House to have a quiet cigarette. I do not expect that Adelaide City Council would ban smoking in any particular area around Parliament House.

The Hon. B.V. Finnigan: They can't.

The Hon. D.W. RIDGWAY: The Hon. Bernard Finnigan says it can't, but Councillor Anne Moran, who is a smoker herself, has said that it is probably about time to consider a ban on smoking in Rundle Mall because it is a precinct where, again, families, children and a whole range of people congregate, so perhaps that precinct should be smoke free. You cannot smoke in any Westfield shopping centre, and the mall is, effectively, a shopping centre without a roof. Just as many people congregate there and feel the effects of passive smoking.

When I originally raised this issue, Mayor Harbison said that he thought it was a good idea; however, councils do not have the power to impose a penalty, but he thought that something at about the level of a parking fine (about $20) was a fair penalty to impose and that that was an appropriate figure.

At one stage, I had a littering component in the bill, but I dropped that. If a cigarette butt is defined as a piece of litter, a penalty of $375 for littering would be excessive for a cigarette butt, so this bill determines that $20 is the fine for breaching a council imposed by-law and that $200 is the expiable fine if the person adopts the approach that they do not wish to pay that.

I think it is fortuitous that the Premier announced that Lance Armstrong was coming to ride in the Tour Down Under. Lance Armstrong is a world-renowned survivor of cancer and a great global fighter for cancer awareness, so I thought it appropriate that I write and advise him that I want to progress this legislation and seek his support.

I have had a number of conversations. In fact, his foundation's public/government relations officer rang me and booked an appointment, and we had a telephone hook-up. They applauded me for my courage to progress this piece of legislation and said that they would do whatever they could to help. As of this morning, I received a statement from the Lance Armstrong Foundation which I circulated to all members. In correspondence I have received, the foundation indicated that it could not endorse just one particular piece of legislation because, if it chose just one piece, legislators all over the world would be beating a path to the foundation's door to support every piece of legislation.

It decided that the best way to approach it was to come out with a broad statement. I highlighted to members the final sentence in that statement which was that it supports 100 per cent smoke-free public places. It is interesting, and I reiterate the words of my colleague the Hon. Robert Lawson. It seems that the government does promote healthy lifestyles and it is anti-smoking. It does want to promote South Australia as a unique place in the world, but it did not think of this. It is almost like, 'Well, we are really bipartisan as long as we think of it first and we can drag the other parties along with it.'

This is an opportunity for this government to be bipartisan and support this initiative so that, if the council chooses to do it, we can have a truly smoke-free Tour Down Under. My colleague the Hon. Robert Lawson talked about a legal product. Alcohol is a legal product, but we have a dry zone in the city because, unfortunately, elements of our community cannot handle their alcohol in public, and as a community we made a decision to have a dry zone in the city. We have dry zones in other parts of the state, so I do not see this ban as being any different from dry zones. It is a legal product. If people used it responsibly and do not let others be affected by it there would be no need for this legislation.

Certainly, I agree with the interpretation of my colleague the Hon. Robert Lawson—wind-swept cliffs. I suspect that the Port Adelaide Enfield Council—in fact all our beachside councils— may well impose a ban on beaches from 1 October to 1 March, because that is when a lot of families go to the beaches. It may well decide that it suits its community not to be bothered with having a ban in the middle of winter when there is a screaming gale and a handful of people down there walking their dogs. It is about protecting the public when large groups of people get together in particular areas.

I am sure that we will have large numbers of spectators at the Tour Down Under in certain areas. This whole cycle race promotes a healthy lifestyle. Mutual Community is part of a cycle challenge. I know that the EFM health clubs have a cycle challenge as part of the community participation. It is all about fitness and health. I know that a couple of members are smirking. They do know that I go to an EFM gym. I know it does not show, but I would probably be twice the size if I did not go. Certainly it is all about a healthy, positive approach to life in South Australia.

It is a wonderful opportunity for the government not to be so selfish and for once to be bipartisan and support something which was not its idea but which, in fact, supports a positive approach for South Australia. With those few words, I urge all members to support the legislation.

Bill read a second time and taken through committee without amendment.

Third Reading

The council divided on the third reading:

AYES (10)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Kanck, S.M. Lawson, R.D.
Lensink, J.M.A. Parnell, M. Ridgway, D.W. (teller)
Wade, S.G.
NOES (9)
Bressington, A. Finnigan, B.V. Gazzola, J.M.
Holloway, P. Hunter, I.K. Lucas, R.I.
Schaefer, C.V. Wortley, R.P. (teller) Zollo, C.
PAIRS (2)
Stephens, T.J. Gago, G.E.

Majority of 1 for the ayes.

Third reading thus carried.

Bill passed.

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