31/08/2015 8:00 AM AEST | Updated 15/07/2016 12:50 PM AEST

NSW Smoking Law Loophole Leaves Diners In The Dark As Smokers Light Up

Fairfax / Sahlan Hayes

NSW restaurants and pubs are skirting new restrictions on smoking by converting outdoor dining areas into smokers-only zones, a move the NSW government admitted it is essentially powerless to stop.

The new regulations -- making it an offence to smoke within four metres of a dining area in a pub, club, restaurant or café -- were meant to encourage owners to phase out smoking. However, many establishments across NSW have flipped the law on its head, turning outdoor areas previously shared by diners and smokers into smoking-only areas, essentially barring diners from eating alfresco.

Just weeks into the new system, public health official Audrey Maag said a “majority of businesses in NSW have created smoke-free dining environments,” but conceded there was little recourse for NSW Health to address businesses stubbing out dining for smoking.

“How hospitality businesses choose to use their venue is their business,” Maag said.

“Four out of five people support smoke-free outdoor dining. We hope they will respond to customer demand.”

Signs warning patrons of the new laws, at Cronulla's Kurrabar Café (Fairfax/John Veage).

An information sheet on the department’s website states, “the new law does not prevent the creation of designated outdoor smoking areas in licensed premises and restaurants.”

Maag, acting deputy director in NSW Health’s Centre for Population Health, said inspectors had detected only 11 breaches from 500 venues so far*. Despite penalties of up to $5500 for proprietors flouting the regulations and on-the-spot $300 fines for patrons, she said no fines had yet been issued for breaches.

“Any non-compliance, inspectors are working with them, and those 11 businesses will have follow-up measures. There have been no fines at this stage,” she said.

“The first visit is about helping businesses and patrons to comply, but on a return visit, on the spot fines can be given to patrons. The aim is to achieve compliance, not to penalise.”

New laws make it an offence to smoke within four metres of a dining area (Flickr).

Dr Becky Freeman, a research fellow in the School of Public Health at the University of Sydney, criticised the new laws for not going far enough in protecting diners from second-hand smoke.

She said the laws had led to “confusion” among diners.

“Including this exception for outdoor areas is a way of not going all the way - where you can have outdoor smoking if you don’t serve food. It would have been much cleaner for me if it was just no outdoor smoking,” Freeman said.

“I’m not in charge of enforcement of these laws, but so few people smoke now. I can’t see how business decisions are being made to cut out an arm of your business like that… I would be surprised if establishments that didn’t cater to the non-smoking majority don’t change in future.”

She claimed just 14 per cent of NSW residents were smokers, and that the number was “going down every year.”

“It wouldn’t surprise me if these laws were revisited soon, and strengthened,” Freeman said.

* Figures accurate as of mid-August.