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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 legal
news - actions 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...)
| Place | Jurisdiction (details below) |
Protection level | Strengths | Weaknesses |
| 1 | Queensland | Very good | Indoor and all food/drink service areas smokefree. Pub/club smoking areas limited, separate, unenclosed, no staffing (including live entertainment), no eating. | Exemption for high roller gaming room. |
| 2 | Tasmania | Good | Indoor and 50% of each venue's outdoor dining smokefree. Pub/club outdoor smoking areas must have no food/drink service; no roof or <50% walls. No "high roller" gaming exemption. | Some crowded eating/drinking (& thus working) areas still smoky. |
| 3 | Western Australia | Fair (soon "Good"?) | Smoking areas must have < roof + 50% walls open. Proposes 50% of licensed food service and all other food service areas smokefree. | Some crowded eating/drinking/working areas still smoky. High roller gaming rooms exempt. |
| 4 | Australian Capital Territory | Fair (soon "V. Good"?) | Totally enclosed areas smokefree. No high roller room exemption. ACT proposes all food and drinks service areas smokefree by end-2010. | Licensed areas up to 75% enclosed still smoky, some may be staffed. |
| 5 |
South Australia |
Poor | Totally enclosed working areas smokefree - including all gaming areas, no exemption for high rollers. | Smoky areas up to 70% enclosed leave staff, patrons at risk. |
| 6 | Victoria | Poor | Totally enclosed licensed areas smokefree. No smoking in gaming areas (except high roller room). | Many areas up to 75% (of walls) enclosed (plus roof) leave staff, patrons at risk. High roller gaming room exempt. |
| 7 | New South Wales | Very poor | Totally enclosed licensed and eating areas smokefree. | Many eating/drinking areas up to 75% enclosed (walls + roof). Staff, patrons at risk. High roller gaming exempt; much gaming in "outdoor" smoking areas. Poor separation. Some fully enclosed small workplaces still smoky. |
| 8 | Northern Territory |
Shocking | A few very limited indoor areas smokefree. Under review - government promises at least totally enclosed areas smokefree by Jan. 2010. | Many totally enclosed workplaces still smoky - including most public eating/drinking areas. Slow timetable for improvement. |
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 smoking areas must be substantially outdoors, separate and unstaffed - no eating, 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 Nobody smokes here anymore - Qld government site including legislation and relevant info.
Tasmania: GOOD. All indoor areas of pubs and clubs smokefree (from January 2006 - first Australian jurisdiction to do this). No exemption for "high roller" gaming. At least 50% of outdoor dining areas must be smokefree, and smoking areas in licensed venues must be unstaffed and substantially unenclosed (no roof or no more than 50% of wall cover). See current smokefree places legislation details
WA: FAIR (soon GOOD?). All "indoor" (more than roof + 50% walls) licensed areas now smokefree; but some remaining smoking areas are at least half enclosed, and staffed. "High roller" gaming room is exempt and still smoky. Private Member's Bill under review would see all outdoor dining areas become smokefree - except in licensed venues which would still allow smoking in up to 50% of these areas. See WA law details See END THE UNHEALTHY LOOPHOLES
ACT: FAIR (soon VERY GOOD?). So-called "total" indoor smoke bans (no exemption for "high roller" gaming) in fact leave smoking areas up to almost 75% enclosed - though with no gaming. See 75% enclosed loophole regulation and ASH release 25/10/05 ACT is committed to making all public food and drinks service areas smokefree by the end of 2010. See END THE UNHEALTHY LOOPHOLES
SA: POOR. From Oct 31 '07, totally enclosed areas at last smokefree - with no exemption for any gaming rooms. But this still leaves fake "outdoor" smoking areas (up to 70% enclosed) 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 END THE UNHEALTHY LOOPHOLES
Victoria: POOR. From July '07, totally enclosed areas smokefree, but still leaves many smoky "outdoor" spaces as much as 75% enclosed (plus roof), including staffed and eating areas. All gaming areas smokefree - except "high roller" gaming room. No indication of any move forward, despite health evidence and strong public support. All other enclosed workplaces must be smokefree. See smokefree workplace legislation and VicHealth tobacco reforms for latest rules, info hotline and links to legislation END THE UNHEALTHY LOOPHOLES
NSW: VERY POOR. From July '07, no
smoking in totally enclosed areas ("high roller" gaming room exempt) -
but a weak
75%-enclosure loophole, allowing many eating, gaming and other working areas to stay smoky. No indication of any move beyond this,
despite health evidence of unacceptable exposure and strong public support for
100% smokefree. Much direct consultation with
employers, very little with employees. Some other non-government, non-public
workplaces may still have enclosed smoking areas, with WorkCover taking a weak
line of "managing" rather than eliminating secondhand smoke. For latest, see
SmokeFree
Australia media release 15/9/07 See NSW
tobacco and smokefree legislation END
THE UNHEALTHY LOOPHOLES NSW smokefree laws and
how to complain: See new Cancer
Council NSW webpage
CALL NSW Department of Health Hotline (02) 9391 9111 if
you suspect a venue is not complying with the laws.
NT: SHOCKING. The last jurisdiction to set a deadline for an end to smoking in totally enclosed areas of licensed premises, has finally set this for January 2010. Current smokefree public places legislation only deals with doorways, thoroughfares and dance floors in licensed venues. NT government has yet to define how "indoor" will be defined from Jan. 2010. NT again won the Dirty Ashtray Award in 2008 for failing to clean up this act. See details See NT health groups' release 2/11/07
Any
workplace exposing people significantly to secondhand smoke is an unsafe
workplace.
Continuing exceptions to workplace safety principles to permit secondhand
smoke undermine Occupational Health and Safety laws and compromise the perceived
consistency and fairness of work safety authorities.
States
told by NOHSC: get rid of smoky workplaces
The National Occupational
Health and Safety Commission advised all states and territories back in October
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 exceptions 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.
In a landmark decision in 1997, Sue Meeuwissen, an asthmatic, received $2,000 in compensation from the Hilton Hotel in Sydney for unlawful discrimination under the Disability Discrimination Act 1992. Ms Meeuwissen, one of 2 million asthmatics in Australia, was denied both services and access to the hotel's nightclub because of her disability. She died in 2000 aged 38 - but not before she successfully launched her slogan "Where People Smoke Matters".
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 and Equal Opportunity Commission (HREOC) established by the Human Rights and Equal Opportunity Act 1986.
Complaint forms can be
obtained and lodged with the Human Rights 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.
See latest studies from Scotland
Tobacco's
heartland moves towards smokefree bars, restaurants
20/2/09: The US state that launched the tobacco industry has taken a
big step towards making its bars and restaurants smokefree - at least
indoors. Both houses of the Virginia legislature have passed a bill
restricting smoking in restaurants to ones with rooms that are
ventilated separately and to private clubs. Virginia's Governor says he
intends to sign the bill quickly. 23 other states and Puerto Rico have
passed bans on smoking indoors at bars and restaurants. See
Richmond,
Virginia Times-Despatch report 20/2/09
Smokefree workplaces, restaurants and bars
worldwide
As at January 2009, 22 countries
had adopted and successfully implemented nationwide smoke-free laws
that apply to all 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 are inconsistent with 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
Australia: Smoky
pub gives Aussie barworker tongue cancer - how many more?
21/11/05: 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 confidentiality. 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
LICENCE TO KILL: PARTLY
ENCLOSED SMOKING ROOMS
2001: Sharp v Port Kembla RSL (2001) - big compensation payout for throat cancer suffered by non-smoking bar worker. See summary and comment
See List
of Australian secondhand smoke legal cases (as at mid-2005)
See also Meeuwissen case above, under DISABILITY DISCRIMINATION LAWS
Japan:
First passive smoking damages award sounds
warning bells for employers
12/7/04: 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