Tuesday 1 October, 2013
Successful outcome of the Judicial Review of the Open Area Calculator
Earlier this year the Cancer Society joined with, Salvation Army Trust and The Problem Gambling Foundation of New
Zealand, to call for a judicial review of the open area calculator used to approve smoking areas in licenced premises.
The case cited SkyCity Casino’s Diamond Lounge, which has an approved ‘open area’ that any member of the public would
most likely deem substantially enclosed. They argued that it contravened the Smoke-free Environments Act 1990.
In the review documents it was pointed out that premise owners are able to take advantage of the ambiguous guidelines in
calculating open spaces for smokers and this in turn creates a health risk to patrons and staff. It is also in direct
contradiction to the Government’s goal of a smoke-free New Zealand by 2025. The judicial review took place on Wednesday
7 August, 2013 in Auckland.
The organisations are delighted with the findings of the review, just released, as the judge has agreed the calculator
is inconsistent with the definition of an ‘open area’ under the Act.
The calculator, routinely used by Smokefree Enforcement Officers to assess premises, uses a complex combination of
information about the total floor area, openings and windows, side and ceiling measurements.
“The decision to call for a judicial review was because it was blatantly obvious the calculator supported smoking in an
area that was indoors. The ruling means premise owners will no longer be able to take advantage of the ambiguous
guidelines to design ‘open area’ smoking spaces,” said Dr Jan Pearson, Health Promotion Manager of the Cancer Society.
“We look forward to a new method of assessing ‘open areas’ that is consistent with the intent and purpose of the
Smoke-free Environments Act 1990 and that support the Government’s stated goal of a smoke-free Aotearoa by 2025. We are
sure staff and smoke-free patrons will look forward to the changes as well.”