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To what extent have the rights of smokers been eroded by recent anti-smoking legislation in NSW? Can the legislation be justified? Essay Example

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The rights of smokers

Introduction

The recently introduced anti-smoking legislations in New South Wales outlaw smoking in enclosed public places such as hospitals, sport fields, beaches and workplaces (McKay 2009). These legislations have brought about major debate and have received both negative and positive reception from smokers and non-smokers. Most people commend the enactment of these laws, citing that passive smoking has harmful effects to non-smokers who are involuntarily exposed to second hand smoke. On the other hand, some argue that these legislations discriminate and infringe the rights of smokers (Border Mail 2007).This paper seeks to examine to what extent have the rights of smokers been infringed by the recently introduced anti-smoking legislations in New South Wales. It will also depict whether the anti-smoking legislations in New South Wales can be justified. Foremost, this paper will examine the provisions of the anti-smoking legislation in NSW. Subsequently, this paper will provide a persuasive analysis of the various arguments presented for and against the newly introduced legislations. The thesis of this paper accentuates that, the well being of the public is paramount, therefore, in as much as some of these legislations in infringe on the rights of smokers, safety measures should be put into place to ensure that the general public and children are not exposed to second hand smoke.

Anti-smoking legislation in NSW

In June 2000, the government in the New South Wales government enacted legislations that sought to outlaw smoking inside cafes, restaurants and other public settings where food is bought and consumed (Chapman, Borland & Lal 2001).Moreover, in July 2009, new anti-tobacco legislations came into effect, these legislations outlaw drivers from smoking in the car when carrying passengers particularly children who are under the age of sixteen (McKay 2009). Anti-smoking legislations in NSW are under the Smoke-free environment Act 2000 and the Smoke –free Environment Amendment Act 2004. The key objective of this Act is to “promote public health by minimizing the exposure of the public to tobacco and smoke particularly in enclosed public areas. According to section 4 of the Act a “public space” is considered to be a ”place or a vehicle that is open and a section of the public or the public in general is entitled to use either through membership or by virtue of paying money.” Section 7 of the Act depicts that it is illegal to smoke in a “smoke free area”, smoke free areas are any enclosed areas. Therefore, a person found smoking in a smoke free area has committed an offense however, if the offender had no previous knowledge that they were smoking in smoke free area then they can be acquitted off the charge. Some of the smoke free areas include; shopping centers, theatres , restaurants, schools, business premises, social centers, trains, buses and hospitals among many other areas. The Smoke-free Environment Amendment Act 2004, exempts casinos and other licensed smoking areas from being considered as smoke –free areas (Drabsch 2005).

Smokers and those against the anti-smoking legislations to some extent feel that their rights have been infringed. Some argue that as a result of these legislations, smokers have been victimized on a personal basis and as a group in their work places and the public arena. As a result of these legislations, some argue that smokers have been subjected to harassments and emotional distress this has in turn interfered with their individual work and other pursuits. On the other hand, non-smokers are often subjected to second hand smoke this subjects them to health complications (Anderson 2003). Moreover, activist against these legislations argue that despite the fact that the government has legalized cigarette smoking, the enactment of these legislations portrays the attempts of the governments to eradicate cigarette smoking by all means. This in turn infringes on the rights of smokers to make their personal choices or it infringes on the smoker’s freedom of personal choice. Some believe that these legislations validate the government use of financial punishment as “choice of cure” for cigarette smoking as an addiction. For example, those who are caught smoking in smoke-free zones are fined over $250 on the spot (McKay 2009). However, it is worth noting that punitive measures may not necessarily help cigarette smokers to give up on their addiction. Moreover, NSW anti-smoking legislations infringe on the property rights of owners. In as much as the government, through these legislations aims at protecting the health of the general public, property owners have the right to decide whether their property is a smoking zone or a smoke free area (Anderson 2003).

Anderson (2003) observes that, it is evident that there are conflicting rights, however anti-smoking legislations may not be the answer. According to Anderson, the key issue is not based on the fact that these legislations will be used to mediate between smokers and non-smokers rather the key issue is based on the notion that anti-smoking activists are using these legislations as means of taking away the personal choices of individuals who can think for themselves and hijacking the property rights of owners. Furthermore, Anderson notes that, if one erodes individual freedom to determine what they consume then one takes away all their freedom (Anderson 2003). On the contrary, the rights of non-smokers are also infringed whenever they are involuntarily exposed to second hand smoke.

In addition, the accuracy and validity of research conclusions on second hand smoke has been put to question. The effects of secondhand smoke has often been used as the main basis for anti-smoking legislations, however many smokers believe that that these are conspiracy theories that are designed to discourage smoking. Lobby groups fighting for the rights of smokers argue that there are even more toxic substances than tobacco that the government should focus their time and resources to control. Government sponsored research studies on negative effects of third hand smoke often alienate smokers and cause them to be considered as societal misfits. Not only do these antismoking legislations infringe on the rights of smokers, they also affect businesses particularly those in the hospitality industry. A good number of restaurant and bar owners feel that the anti-smoking laws have affected their businesses negatively (Israel 2010).

Rationale behind NSW anti-smoking legislations

On the other hand, the NSW anti-smoking legislations have received support by many who are of the view that these legislations promote public health by minimizing the exposure of the public to tobacco and smoke particularly in enclosed public areas. According to the Sunshine Coast Daily, March 2, 2011 over 6, 500 people die annually in NSW as a result of tobacco or smoke related illnesses. In NSW smoking is considered to be the greatest cause of premature death cases costing over $10 billion every year to tax payers. According to McKay (2009), over $600,000 is spent every day to care for and cure smoking related conditions. Credible research studies show that second hand smoke can contribute to coronary heart diseases and lung cancer. Some studies also show that second hand smoke can worsen asthma and cause different respiratory disorders. Thus these laws aim at protecting the health interests of non-smokers who are involuntarily subjected to second hand smoke (POST 2003).

Conclusion

The NSW anti-smoking legislations under Smoke –free Environment Amendment Act aim at “promote public health by minimizing the exposure of the public to tobacco and smoke particularly in enclosed public areas. The enacted of these laws have brought about heated controversies and debates .Those supporting these laws argue that these laws are necessary since they safe guard the interests of the public and children against the harmful effects of tobacco. On the other hand, those against these laws argue the recently introduced NSW antismoking laws infringe on the rights of smokers to choice, it also infringes on the rights of property owners. It is therefore apparent that there is a conflict of rights. Even so, the well being of the public is paramount, therefore, in as much as some of these legislations in infringe on the rights of smokers, safety measures should be put into place to ensure that the general public and children are not exposed to second hand smoke. Instead of using punitive measures to counter tobacco smoking, the NSW government should focus on educating the public on the harmful effects of smoking. Property owners should also be reinstated with the freedom of choosing whether or not their premises are smoking zones or smoke free zones.

Bibliography

Anderson, W., 2003, Smoking and Property Rights, Retrieved on May 9, 2011 from <http://mises.org/daily/1244>

Chapman, S., Borland, R. & Lal, A., 2001, Has the ban on smoking in New South Wales restaurants worked? A comparison of restaurants in Sydney and Melbourne, A medical Journal of Australia 174; 512-515.

Drabsch, T., 2005, Tobacco Control in New South Wales, NSW Parliamentary Library

Research Service, Briefing Paper No 1/05.

Israel, J., 2010, The smoking ban debate, Retrieved on May 9, 2011 from <http://www.quit-smoking-central.com/the-smoking-ban.html>

McKay, J., 2009, Tough new tobacco laws begin today, Retrieved on May 9, 2011 from <http://www.health.nsw.gov.au/news/2009/20090701_01.html>

Parliamentary Office of Science and Technology, 2003, Smoking in public places, postnote October 2003, Number 206, p.2.

Sunshine Coast Daily, March 2, 2011, Government wants anti-tobacco laws kept , Retrieved on May 9, 2011 from <http://www.sunshinecoastdaily.com.au/story/2011/03/02/govt-wants-opp-to-keep-anti-tobacco-laws>

The Border Mail, 2007, Everyone’s a winner with new anti-smoking laws, Retrieved on May 9, 2011 from <http://www.bordermail.com.au/news/local/news/columns/everyonersquos-a-winner-with-new-antismoking-laws/662141.aspx>