28 August 2014

Forgotten posts from 2009 : Banning smoking in public places

The Standard reports, disapprovingly, that Western Bay of Plenty District Council is banning smoking in public places. One of the rare occasions I agree with the Standard.

However, it is clear it isn't actually a ban - you see I don't believe any council has the clear legal authority to do this. It can put up signs saying "no smoking", but by what power can it do this?

Bylaw making powers of local authorities are quite constrained. The Local Government Act 2002 grants many (though not all) bylaw making powers to councils. Section 145 grants apparently wide ranging general powers, but then Section 146 is more specific, and Section 147 is very specific, around alcohol. Given the similarities between how alcohol and tobacco are treated legally (both controlled drugs) it is likely Parliament did not intend to give councils power to ban smoking in outdoor locations, it may have granted them power to very specifically ban smoking in circumstances clearly applicable in Section 145, but NOT across beaches or across parks. You see bylaws against nuisance, public health and offensive behaviour are seen as about regulating berrant behaviours. This includes excessive noise, unhygienic activities or behaviour more akin to the Summary Offences Act, than smoking. Bear in mind smoking does not, per se, create a nuisance, public health problem (to others) or offence.

So, quite simply, I don't think any such bylaw is legitimate.

What IS legitimate is using property rights to ban smoking, which works in buildings of course, but on public land the question is whether the council should have the rights of any other property owner? A private park or beach should of course, ban what it sees fit, but not public space.

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