CANBERRA: An incident at popular left-wing venue Smith’s Alternative in Canberra city just over a month ago has highlighted once again the confusion around the ACT’s smoking laws when it comes to outdoor seating areas. Chris Mordd Richards sparks up with this report.
Under territory legislation introduced in 2009, venue owners can be heftily fined along with smokers, if they allow customers to smoke in any ‘enclosed space’ that is part of the venue, or smoke too close nearby.
This gives venue owners the incentive to be very proactive about enforcing the no smoking rules lest they be held responsible. And this in practice can result in somewhat varied interpretations of the law when it comes to just how close is too close.
An incident just before Christmas late last year was a perfect example.
It was December 22, 2018 and Roxley Foley, an Aboriginal activist and Custodian of the Aboriginal Tent Embassy in Canberra for the past four years, was out catching up in the city with a friend of his; Trent Taylor, a Tuba-gah Wiradjuri man visiting from NSW.
They ended up going to one of the city’s only existing indie and left-wing haunts, Smith’s Alternative.
Roxley purchased drinks from the proprietor of Smith’s, Nigel McRae, and joined two women seated outside. At some point, Trent lit up a cigarette while in the bar’s outdoor area.
While walking back from serving customers at another table, Nigel spotted Trent smoking, and yelled at him to put it out. Which he immediately did, in his hand. Trent then got up and moved a few metres away from the seating area. Before lighting up again.
Nigel, seemingly not satisfied with how far away he had moved, followed Trent and after telling him to move away again, decided to pull out his phone and call for police to assist.
Trent tried to debate the issue with Nigel as he was making the phone call, but shortly after the police arrived to intervene in the situation. Having waited where he was for the police to arrive, Trent was then told to leave immediately.
Soon after, a police officer firmly forced Trent back as he tried to film the encounter on his phone. He then left the area as directed by police.
Nigel’s view of the events that evening however differs somewhat from Trent and Roxley’s as well as some other witness accounts.
“On Saturday evening (22/12/18) a customer at Smith’s was observed smoking in our outdoor area. They were asked to move four metres away from our area, as is required by law. They refused to move away, standing right at the boundary of our area. They were advised that if they didn’t move away, the police would have to be called. They still refused to move. The police were called and the customer was made to leave the area,” the bar proprietor posted as a media statement.
Whilst Nigel was well within his rights and perfectly entitled to act the way he did, questions have been raised about whether his approach was too heavy-handed or hasty in calling the police so quickly.
Meanwhile, it must be noted that there actually isn’t a so-called four-metre rule in the legislation. It doesn’t exist. There’s no distances given at all.
Instead, the law uses phrases describing preventing smoke “from entering the enclosed premises“.
But this mistake is understandable.
Given the way the law is crafted, venue owners have to be overly vigilant in enforcing these rules on behalf of the Government.
A social media storm
Later in the evening after the incident, Roxley posted to Facebook about Trent having the police called on him for smoking, and implied that racism may have been involved.
This claim was withdrawn 24 hours later, after True Crime News Weekly made some queries with those involved in the incident. However, those same queries then led to Nigel publishing what would turn out to be a very contentious post about the incident and accusations against them in the Smith’s Alternative Facebook group.
Many users vehemently defended Smith’s and questioned how Nigel could possibly be accused of racism or anything of the sort. Others pointed out that calling the police on people of colour can be traumatising and problematic given indigenous incarceration rates in Australia.
In the end what is clear is that busy venue owners are coming under increasing pressure from constantly having to police smoking in their outdoor seating areas. While smokers are finding out that there is less and less public space that is welcoming for them.
The combative environment that the legislation sets up is ultimately to blame though, and in the incident at Smith’s it could be said that both Trent and Nigel are collateral damage in regards to how the current legislation works.
After a recent visit to Smith’s, it was clear that from where Trent had been sitting, there is only one no smoking sign approximately three to four metres away, and in small print at that. He likely could not see it clearly from where he was.
The other signs are around the corner on a wall, or facing the venue front itself on the two pillars, and not visible from the far end of the wooden seating area.
The only ‘crime’ Smith’s may have committed is not placing more no smoking signs or making them more recognisable with a large image to convey the message more clearly.
True Crime News Weekly is sure that after all the attention this incident has brought, Nigel may well be more circumspect in future before calling the police. And possibly add a few more signs or make the existing ones clearer so it is more plain to all customers what the rules are.
Trent for his part has learnt a valuable lesson about ACT smoking laws.
The incident highlights how quickly things can blow up due to the way the legislation forces venue owners to play smoking cop.
Meanwhile, the ACT Government has even more stringent ‘no smoking’ laws planned for this year, and it seems unlikely the government will change how the current laws work anytime soon.
In any case, it’s a likely bet that there will be more clashes over where people can smoke, or vape at venues like Smith’s Alternative, as a stubborn diminishing population of smokers continues to try and get away with smoking in public areas which are forever being more tightly regulated for one reason or another.
Full Disclosure: The author has been friends with the activist, Roxley Foley, for over three years, and has known Smith’s Alternative proprietor, Nigel McRae, for over 12 years.