Smokers' new legal spat

SkyCity. Photo / Doug Sherring

The Government is being sued for allowing gamblers to smoke at SkyCity casino in a landmark case which could see the end of smoker-friendly areas at bars and restaurants.

The Cancer Society case takes aim at Ministry of Health rules which have spawned a slew of "open air" smoking areas enclosed by a roof and walls.

Papers filed with the Auckland High Court accuse the Ministry of Health of getting the law wrong in allowing SkyCity's smoker-friendly Diamond Lounge, where gamblers can play pokies in a roofed area ventilated by louvre windows.

The statement of claim alleged the ministry's way of determining "open air" smoking areas was wrong and had allowed the creation of smoker-friendly lounges which were actually enclosed rooms.

"It is a nonsense," said Dr Jan Pearson, the society's health promotion manager. "It's easy if you have an engineer and the right design, you can comply. It says 'come on in - this is where you can do whatever you like'."

Health Minister Tony Ryall and associate Health Minister Tariana Turia have both been briefed on the lawsuit, which asked the high court to rule the ministry's method of approving smoker-friendly areas was wrong. It also asked the court to overturn the decision which allowed smoking in the Diamond Lounge - or to force it through the approval process again.

The court papers reveal SkyCity filed papers with the Gambling Commission less than two months ago for a second smoker-friendly area in the casino.

The application, on December 19, comes at a sensitive time for SkyCity with an Audit Office ruling due on its deal to swap relaxed gambling laws for the $350 million cost of the proposed International Convention Centre.

The papers also reveal the case was taken by the Cancer Society, the Salvation Army and the Problem Gambling Foundation after months of unsuccessful lobbying over the approval of the Diamond Lounge, which opened a year ago.

The Herald understands the three bodies last met the Ministry of Health's deputy director general, Cathy O'Malley, in early December to urge a review of the decision and were told no action would be taken.

The court papers alleged the ministry had got it wrong and that the Diamond Lounge and the proposed areas were "enclosed". It stated a condition of SkyCity's licence was to make sure "no person smokes at any time in any part of the casino that is not an open area".

The Cancer Society case focused on the ministry's "open air" calculator, used by the Auckland Regional Public Health Service to approve the Diamond Lounge. The Cancer Society claimed the calculator, which judges "open areas" by window and door size, didn't meet the legal standard set out in the Smoke-free Environments Act 1990. In doing so, it alleged the casino was "in breach of law in permitting patrons to smoke in the Diamond Lounge".

Dr Pearson said the Cancer Society had considered carefully the implications of making the legal move. "It hasn't been taken lightly."

She said the case had implications for similar areas across the country. "The tobacco companies are really fighting here. We are trying to reduce the amount of money they make."

The defendants in the case, if accepted by the court, are the Ministry of Health, Auckland Regional Public Health Service and SkyCity Auckland.

SkyCity spokesman Gordon Jon Thompson said the casino was "not the subject of the judicial review". "The main focus is on the Ministry of Health's open areas calculator, which has been used as a guide by many businesses nationwide, including SkyCity."

The ministry and public health service confirmed they were parties to the case. The ministry's senior tobacco control advisor, Brendon Baker, said: "As legal action is pending we are constrained in what we can say."