SMOKEFREE LAWS: AUSTRALIAN STATES AND THE WORLD

Australian states and territories have their own separate smokefree public places laws. See state/territory smokefree workplace scoreboard below for roundup and links to details.

Smoky workplaces - including partly-enclosed smoking areas in pubs and clubs - are a public health hazard, and undermine work safety laws requiring employers to provide safe workplaces. Again, each state and territory has its own laws in this area - many of them are selectively ignored.

Smoky workplaces also conflict with federal and state disability discrimination laws in denying people with smoke-affected disabilities fair employment in, and access to, venues.  

See the worldwide trend towards smokefree workplaces - which countries have done what - and the relevant international treaties we have obligations under.

See the latest Australian and overseas legal news - courts increasingly pointing to a responsibility to get smoking areas separated from non-smoking (including working, eating and gaming) areas.

STATE/TERRITORY SMOKEFREE WORKPLACE SCOREBOARD 

Which Australian governments are best protecting workplace safety and public health?
(in order of effective public and workplace health protection; based on existing legislation, regulations or dated government commitment)  

State & Territory details:

Queensland: VERY GOOD. Australia's best practice legislative model. All indoor areas of pubs and clubs, and all eating areas smokefree. Remaining licensed venue smoking areas must be substantially outdoors, separate and unstaffed - no eating, drinks service, live entertainment or gambling. Strong community approval, high compliance, no apparent legal dispute. Smokefree exemption for "high roller" gaming rooms the remaining blot, though Qld has asked all governments to meet to set an agreed date to end this. Government now considering further changes. See Qld tobacco laws  - Qld government site including legislation and relevant info.  

In 2007,Queensland's then Deputy Premier and Treasurer (and later Premier) Anna Bligh put the whingeing gambling lobby firmly back in its box.  Acknowledging a revenue hiccup after smokefree changes in her state, she said: "We are in no way disappointed with any revenue drop. Every dollar we miss here is more than made up by what we won't have to spend on smoking-related health matters now and in the future."  See extract of her  media release

ACT:  VERY GOOD. After its "75/25%" formula proved ineffective and unpopular, has moved to more effective comprehensive strategy: legislation passed December 2009 makes all public eating and drinking areas smokefree by Dec. 2010, as well as underage events of whatever enclosure. No gaming exemptions.  See  the legislation 

NT: VERY GOOD. The last jurisdiction to end to smoking in totally enclosed areas of licensed premises, January 2010. But has now moved closer to best practice by a commitment to making at least 50% of outdoor areas of pubs/clubs smokefree by Jan. 2011. This will include all substantially staffed areas similar to Qld (above) and these areas will be effectively separate. High roller gaming rooms still exempt. See  SmokeFree Australia media release 10/9/09   

WA: GOOD. All "indoor" (more than roof + 50% walls) licensed areas smokefree; "high roller" gaming rooms exempt. Legislation passed 2009 makes all unlicensed outdoor dining areas, and 50% of licensed "outdoor" areas, smokefree by end-2010 - 

but leaves 50% of staffed outdoor licensed areas smoky. See  WA law details   See  WHAT STILL NEEDS FIXING

Tasmania:  GOOD. First Australian jurisdiction to make totally enclosed areas of pubs and clubs smokefree, in 2006. No exemption for "high roller" gaming. At least 50% of outdoor drinking and dining areas must be smokefree, and smoking areas must be substantially unenclosed (no roof or no more than 50% of wall cover). See current smokefree places legislation  details   See  WHAT STILL NEEDS FIXING

SA: POOR. Totally enclosed areas are smokefree - with no exemption for any gaming rooms. But this still leaves fake "outdoor" areas (up to 70% enclosed) smoky - and staffed. No indication of any move beyond this, despite health evidence and strong public support. See Timeline details    and latest on the SA tobacco laws    WHAT STILL NEEDS FIXING

Victoria:  POOR. Totally enclosed areas smokefree, but still leaves many smoky "outdoor" spaces as much as 75% enclosed (plus roof), including staffed and eating areas despite good evidence of harmful exposure. All gaming areas smokefree - except "high roller" gaming room. No indication of any move forward, despite health evidence and strong public support. See  smokefree workplace laws   and latest  tobacco reforms  with info hotline and links to legislation      WHAT STILL NEEDS FIXING

NSW:  VERY POOR. As many as 8 "high roller" and "private" gaming rooms exempt. No smoking in other totally enclosed areas - but a weak 75%-enclosure loophole, allowing many eating, gaming, live entertainment and other heavily staffed areas to stay smoky - despite strong evidence of widespread harmful exposure and public support for 100% smokefree. Totally enclosed areas, including 7 exempt gaming rooms and unknown number of private workplaces, remain smoky - WorkCover taking weak line of "managing" rather than eliminating secondhand smoke. See  NSW tobacco and smokefree legislation    See Cancer Council NSW campaign 2010 and how to take action   CALL NSW Department of Health Hotline (02) 9391 9111 if you suspect a venue is not complying with the laws.  WHAT STILL NEEDS FIXING

WORK SAFETY LAWS

Any workplace exposing people significantly to secondhand smoke is an unsafe workplace. 
Tobacco smoke is a toxic, carcinogenic workplace contaminant. Working areas contaminated by tobacco smoke undermine Occupational Health and Safety laws and compromise the consistency and credibility of work safety authorities.

Report recommends tighter laws to make workplaces smokefree
2009: The National Preventative Health Taskforce reporting to the Australian Government on measures to prevent chronic disease has recommended tighter laws to make workplaces - indoor and out - smokefree. The report says smokefree working areas should include indoor and outdoor areas of hotels and restaurants, near building entrances, and work vehicles. It cites a damaging 2008 air quality survey of NSW licensed venues' smoking areas. See p. 183 of  Preventative Health Taskforce report: tobacco chapter 

States told by NOHSC: get rid of smoky workplaces
2003: The National Occupational Health and Safety Commission advised all states and territories back in 2003 that smoky workplaces were unhealthy and inconsistent with OH&S laws. A guideline from the national body advised the states to ban indoor smoking from all workplaces - including pubs and clubs - immediately. This has been effectively ignored by most jurisdictions.  See SmokeFree '03 release    See LHMU release    See the NOHSC Guidance Note 2003 

States, territories undermine their own OH&S laws
A smoky workplace is unhealthy and unsafe. Some jurisdictions have allowed their own safe workplace laws to be undermined by inconsistent de facto  exemptions allowing secondhand smoke in workplaces. See this 2002 roundup  of Commonwealth, State and Territory laws setting out employers’ duty of care.  See The Cancer Council NSW's  recommendations for the workplace

Encouraging compliance with smoke bans
See these tips for proprietors (from the US but equally relevant here).   

DISABILITY DISCRIMINATION LAWS

Smoky public places discriminate both in employment and general access against people with disabilities including heart disease, emphysema, asthma, diabetes 2 and many other conditions - an estimated 10% of the public are in this category. 

Sue Meeuwissen v Hilton Hotels of Aust P/L 
1997-2000: Landmark secondhand smoke disability discrimination case in Human Rights (and Equal Opportunity) Commission. Asthmatic Meeuwissen had to leave a nightclub because of her asthma attack caused by others’ smoking. The Commission found in her favour under the Disability Discrimination Act 1992 and awarded damages, Commissioner Graeme Innes likening the situation to someone in a wheelchair being barred by steps - “asking someone to tolerate exclusion, whether because of a step or something that they cannot breathe without risk of injury, is equally unacceptable and abhorrent.”  
See  HREOC decision 1997        HREOC decision 2000
British Medical Journal article
London Sunday Times report
More details in  twitter/Dollars4deceit 

Other secondhand smoke cases in  Tobacco in Australia: facts and issues

The Disability Discrimination Act provides a legal option for people who have been discriminated against in employment or access by reason of disability. Inquiries and proceedings can be conducted under Part 4 of the Act through the Human Rights Commission.  

Complaint forms can be obtained and lodged with the Commission and determinations by the Commissioner usually take around 6 months.

States and territories also have their own discrimination laws - likely also to be in conflict with smoky venues.

Smoke-free policies can avoid legal actions, such as the successful action by a former bar attendant who was awarded $466,000 for passive smoking injury in a NSW hospitality workplace. More details.  

WORLDWIDE TREND

Thailand:   Widespread indoor and outdoor public places to be smokefree

27/2/10: The Thai government has made educational centres, banks, religious places, sports complexes, offices, non air-conditioned eating places, outdoor public places including parks and hospitals completely smoke-free from June 2010. The measures were taken to fulfil Thailand's obligation to the WHO Framework Convention on Tobacco Control (FCTC) - under which member countries are required to create 100% smoke-free environments. Outdoor smoking zones are permitted on the grounds around public and private building as specified in the regulation, but not indoors. Action on Smoking and Health Foundation, Bangkok, Thailand 

Worldwide trend to smokefree workplaces
2009:  See  Reuters list of world smokefree developments

See studies from Scotland 

As at January 2010,  29 countries had adopted and successfully implemented nationwide smoke-free laws that apply to workplaces and public places, at least in totally enclosed areas - 16 of them including bars and restaurants. 
See  Worldwide summary from American Nonsmokers' Rights Foundation - doesn't include US states.
See  US States smokefree workplace chart 

INTERNATIONAL TREATIES

The Framework Convention on Tobacco Control, a World Health Organisation international tobacco control treaty ratified by Australia in 2004, commits parties to taking effective action to protect non-smokers from secondhand smoke.  Standards adopted by the treaty’s governing body make it clear that only 100% smoke-free laws that apply to all workplaces and public places meet the treaty’s requirements. 

Our ratification commits us to recognising (Article 4.2(a), p. 4):  "... the need to take measures to protect all persons from exposure to tobacco smoke"; and we agree (Article 8.2, p.6) to "...actively promote.... the adoption and implementation of effective legislative, executive, administrative and/or other measures, for protection from exposure to tobacco smoke in indoor workplaces.... and, as appropriate, other public places."  See  FCTC text 

The WHO's  Guidelines on Protection from Exposure to Tobacco Smoke  clarify our obligation under the FCTC. See (p. 4) the definitions of "public place", "indoor/enclosed" and "workplace". Current smoking areas allowed under most Australian state and territory laws don't satisfy these definitions, which make it clear: smoking should NOT be permitted in any roofed or otherwise partly-enclosed public places or in any working areas.

Australia and all its states and territories are also signatories to the International Labor Organisation convention no. 155 on Occupational Health and Safety (1981) which obliges member states (Obligation 10) to
... formulate, implement and periodically review a coherent national policy on occupational safety and health in the working environment... to prevent accidents and injury to health by minimising so far as is reasonably practicable, the causes of hazards inherent in the workplace.
Total indoor smoke bans, as demonstrated by other countries (see above, WORLDWIDE TREND), are quite "reasonably practicable" - and any policy exempting tobacco smoke or leaving it complicated by elaborate exemptions cannot be called "coherent."

LEGAL NEWS

See  List of Australian secondhand smoke legal cases (as at mid-2005)         
See also Meeuwissen case above, under DISABILITY DISCRIMINATION LAWS

Canada:  Smokefree prison rule upheld
June 2010:  The Canadian Federal Court of Appeal has upheld a directive by the Canadian Correctional Services Authority prohibiting smoking in both indoor and outdoor areas of federal prisons. A group of prisoners had successfully challenged the directive in the Federal Court, but this was overturned in the Court of Appeal ruling, upholding the smokefree policy.   See the decision

Australia:  Calls for smokefree gambling stepped up after casino cancer claim
May 2010: New calls for all gaming areas to be made 100% smokefree after cancer compensation claim from employee of Melbourne's Crown Casino. Loopholes in smokefree laws allow smoking in enclosed and heavily staffed "high roller" / "premium"  gaming rooms in NSW, Victoria, Queensland, WA and NT. 38-year-old non-smoking Crown staffer understood to be seriously ill with lung cancer - can be caused by secondhand smoke. Four other employees believed to have asked for transfers. See reports in  Melbourne Age    and  Canberra Times    See SmokeFree Australia submission (2009) to Productivity Commission inquiry on  why  Gambling should be smokefree    (ignored by the Commission whose 2010 report failed to even deal with the issue)    - and  What still needs fixing

Australia:  Smoky pub gives Aussie barworker tongue cancer - how many more?
2005: A former Adelaide barworker won a three-year legal battle for compensation after working in a smoky pub gave him tongue cancer. He pursued the action against a workplace insurer in the face of SA WorkCover opposition, after refusing a payout to buy his silence. He had part of his tongue removed and endured years of radiation therapy, speech therapy and more. His case highlights the urgency of closing the loopholes and shortening the deadlines.   See  SmokeFree Australia media release 21/11/05     More details in  Nick Xenophon MP media release 20/11/05    See  What still needs fixing

Australia:  Throat cancer payout to passive-smoked bar worker
2001:  Sharp v Port Kembla RSL case ended in big compensation payout for throat cancer suffered by non-smoking bar worker. See  summary and comment 

Japan:   First passive smoking damages award sounds warning bells for employers 
2004: Japan's first court award of damages for workplace passive smoking harm is part of a growing world trend towards legal action by employees against employers failing to keep workplaces smokefree. See Kyodo News report 12/7/04     

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