NOT only is it disgusting, it is one of the surest ways to spread swine flu.

But people are getting away with spitting in the street because a loophole in the law has left councils powerless to act.

With health experts warning the habit can transmit infectious diseases, including the N1H1 influenza strain which has so far killed 36 people in NSW, a flaw in government legislation means any fines issued for spitting would be lost in court.

Public spitting was decriminalised in 1993 and is no longer part of the Public Health Act. Rockdale Mayor Bill Saravinovski said: "We keep being told by the Government that we can prosecute people but our legal advice is that we'll lose the cases if they go to court because it is not a criminal offence.

"I'm not going to waste ratepayers' money by taking matters to court that are not going to win when all we need is the Government to make one change and there would be no problem.

"I find spitting disgusting but, more importantly, we want the Government to ban it for health reasons, particularly with the swine flu."

He and Auburn Council Mayor Irene Simms said the Government refused to listen and that changes were needed to the Local Government Act to back fines for spitting.

But Local Government Minister Barbara Perry was adamant no changes were needed because "all councils have the power to prohibit spitting in designated areas" and people breaching that rule could be fined $110.

"If councils provide me with any specific instances where they have encountered difficulties in enforcing fines, I'll look into them," she said.

The impasse has lasted three years since Fairfield Council tried to fine people for spitting in 2006.

A council spokeswoman said that when it asked for spitting to be made illegal, NSW Health responded that "spitting doesn't impact on the transmission of infectious diseases".

Originally published as Who gives a spit? No one, apparently