However, some people believe there are ways to get around this law change. If the employer or premises owner has taken “all reasonably practicable steps” then they will not be prosecuted. “All reasonably practicable steps” have been described by the Ministry of Health in their information as having a set of procedures to deal with smokers and taking actions including removing ashtrays, putting up no smoking signs and warning smokers that they are not to smoke indoors.
Once this is done, then they are probably not liable to be prosecuted. Some have claimed that once these steps have been taken, no greater overt action needs to be taken by the employer or premises owner.
However, the Ministry of Health does note in their information that the sort of procedures a premises owner needs to implement is to ensure that someone stops smoking when asked to and to make sure they stop smoking if they wish to stay in the property or leave if they refuse to oblige.
As it is the employer and premises owner that are liable and can be prosecuted and fined, not the individual who is smoking, it is in an employer or owners best interests to be aware of this if contemplating what action should be taken if there is a breach of the new law. Also, it is yet an unknown area as the Ministry of Health can currently only give guidelines and until some cases have been decided, there will be no definite answers to what such steps may be.
These law changes have been made to protect non-smokers who are exposed to second hand smoke in these locations. Three quarters of New Zealanders are non-smokers but many have to put up with employment or recreational areas where smoke is a normal part of the environment.
Although smokers themselves are not liable under this law and therefore people will not individually feel the effects of acting in disregard to this law change, it is likely that if action is taken adverse to the law then other effects may be felt by the individual.
These could include being asked to leave the premises, adverse comments being made by other employees or patrons and employment conditions being affected if a smoker continues to act in disregard of their employer’s instructions.
To act in accordance with the law only involves changing to smoking outside or in areas such as open decks, verandahs and gardens.
Also, if employees want to continue smoking in vehicles, written permission is needed from all people who will be using that vehicle before this can carry on.
A survey in 2003 found that 83 percent of smokers agreed with the principle that all people should have the right to work in smoke free environments.
If this is the case then it is likely that the changes on the 10th of December will have a minimal impact and will improve the environment for non-smokers in areas such as cafes, restaurants, offices, bars and other similar areas.
Miriam Sinclair is Preston Russell Law’s 2004-05 summer law clerk.
