Argument: Right to a Healthy and Safe Environment

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Sheath v. Whitely [Australia] [April 08, 2014]

The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.

Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.

B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Taylor v. Attorney General & Ors [New Zealand] [July 03, 2013]

This was the second case brought by Taylor, a prisoner, against smoking bans in prisons in New Zealand (see also: Taylor v Dept. of Corrections of New Zealand [20 December 2012]). Following the first case, the New Zealand Parliament enacted the Corrections Amendment Regulations, which declared tobacco and smoking equipment to be unauthorized items forbidden to inmates. The Parliament also amended other Regulations which were found to be inconsistent with the smoking ban in the first case. However, the Parliament did not amend the section of the Smoke-free Environments Act which required prison managers to have written policies regulating smoking in cells, which the judge in the first case found implied that smoking must be permissible (otherwise there would be no need to regulate it). Again, the Court found that although the Smoke-free Environments Act did not confer a right to smoke, it recognized that there was such a right. Further, the ban was inconsistent with the provisions of the Corrections Act requiring sentences to be administered humanely, because it would force some prisoners into nicotine withdrawal. The Court therefore declared the legislation effecting the ban to be unlawful, invalid and of no effect. However, when the Parliament passed the new Regulations, it also included ouster provisions purporting to prevent the law from being declared invalid. The Court did not rule on the effect of the ouster provisions because the plaintiff had not claimed any relief.

Sal's Restaurant, Inc. v. Dep't of Health, Bureau of Health Promotion and Risk Reduction (Pennsylvania) [United States] [April 04, 2013]

A restaurant owner challenged the Pennsylvania Department of Health’s determination that the restaurant did not comply with the requirements for an exception to Pennsylvania’s Clean Indoor Air Act to allow smoking in the bar section of their establishment.  The law banned smoking in indoor public places, but allowed certain exceptions.   The establishment had a bar area, a dining area and a shared hallway with bathrooms for both areas.  The bar area was separated by swinging saloon style doors that did not cover the entire doorway, thus allowing smoke to filter into the shared hallway.  The establishment sought an exception to allow smoking in the bar area but the state agency determined that the bar did not meet the enclosed requirement to prevent smoke from getting out of the smoking area.  The court held that despite attempts to comply with the requirements, the restaurant still did not fulfill the statute and was not compliant by the statutorily required time.  The court affirmed the state agency’s ruling denying the application for exception to the non-smoking law.

Dutch Association of CAN v. Netherlands [Netherlands] [March 26, 2013]

A public health organization challenged a government decree that allowed smoking in small cafes and bars that are less than 70 square meters.  In this decision the Court applied FCTC Article 8 to the Dutch law.  The court found the exception for smoking in small bars to be inconsistent with Article 8.2 of the FCTC requiring legislation to provide effective protection from exposure to tobacco smoke in indoor public places, without exception.  The court held this section to have direct effect on Dutch regulations despite the flexibility contained in other parts of the FCTC.  The court ultimately set aside the ruling of the lower court and ordered the government to enforce their ruling.

VFW Post v. City of Evansville [United States] [February 15, 2013]

The City of Evansville enacted a smoke-free ordinance banning smoking in workplaces and other public places within the city limits with the exception of riverboat casinos.  Several private fraternal organizations and tavern owners challenged the law as a violation of the Indiana Constitution.  The plaintiffs claimed the ordinance violated the Privileges and Immunities clause by allowing the exception for the riverboat casinos and infringed their Right to Speak.  Giving broad deference to the legislature of the city, the Court of Appeal affirmed the trial court’s dismissal of the case.  The court said the private clubs were not similarly situated as the casino and the prohibition on smoking was incidental to their freedoms to speak and assemble.

Taylor v. Manager of Auckland Prison [New Zealand] [December 20, 2012]

In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds.  A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion.  The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).

Bullitt County Board of Health v. Bullitt County Fiscal Court, et al. [United States] [December 07, 2012]

This appeal comes from various municipalities that challenged a Bullitt County Board of Health’s regulation banning smoking in “public places, places of employment, private clubs and other outdoor venues” within the county.  The cities were initially successful, when the trial court found the regulation invalid.  In this opinion, the appellate court reverses that decision and finds the smoke-free regulation a valid exercise of the Board of Health’s authority.  The court relied heavily on a Kentucky Supreme Court decision that found similar smoke-free ordinances passed by a different county to be within the county’s powers and thus valid.  A dissenting opinion in this appeal argued that the Board of Health did not cite any local studies as to the health effects of second-hand smoke in the county and that the Board exceeded its powers.

Naya Bans Sarv Vyapar Assoc. v. India [India] [November 09, 2012]

In this judgment of the Delhi High Court, an association of tobacco wholesalers challenged certain provisions of the Cigarettes and Other Tobacco Products Act 2003 (COTPA) which banned the selling of tobacco products within a 100 yard radius of any educational institution.  The wholesalers sought an exclusion of their wholesale trade from the law, arguing that the intent of the law was to reduce retail sale and their business would not be a danger to young people buying tobacco.  While highlighting the public health need for COTPA, the court dismissed the petition, holding that the sale of tobacco products, whether in wholesale or in retail, near the educational institution has the potential of attracting the students so both type of tobacco sellers should be equally restricted.  In addition to dismissing the petition, the court also imposed costs of 20,000 rupees each on the petitioners to be paid to the central and state governments for anti-tobacco initiatives.

Carson Place [Australia] [November 08, 2012]

The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.

The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.

Note: for a similar case, see Admiralty Towers [2012] QBCCMCmr 264 (23 June 2011).