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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 also contravene work safety laws requiring employers to provide safe workplaces. Again, each state and territory has its own laws in this area - many of them being 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 and earlier cases - all pointing to a responsibility to get smoking areas separated from eating, drinking and working areas.
STATE/TERRITORY SMOKEFREE WORKPLACE SCOREBOARD
Which
Australian governments are best protecting workplace safety and public health?
(in order of effective health and safety protection...)
| Place | Jurisdiction (details below) |
In force | Protection | Strengths | Weaknesses |
| 1 | Queensland | Now (1/7/06) | Very good | Smoking areas limited, separate, unenclosed, no staffing (including live entertainment), no eating. | Exemption for high roller gaming room (under review 2008) |
| 2 | Tasmania | Now (1/1/06) | Good | Smoking areas separate, unenclosed, nearly all unstaffed. No exemption for "high roller" gaming. | Some eating (& working) areas may still be smoky. |
| 3 | Western Australia | Now (31/7/06) | Fair | Smoking areas must have less than roof + 50% walls open. | Some smoky areas up to half-enclosed still staffed. High roller gaming rooms exempt. |
| 4 | Australian Capital Territory | Now (1/12/06) | Fair | Smoking areas must be unserviced, according to employers. Are they? No exemption for high roller gaming room. | Unsafe areas up to 75% enclosed still smoky, ? staffed. |
| 5 |
South Australia |
Now (31/10/07) | Weak | Totally enclosed working areas soon smokefree - including high roller gaming room. | Smoky areas up to 70% enclosed will leave staff at risk. |
| 6 | Victoria | Now (1/7/07) | Weak | 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 at risk. High roller gaming room exempt. |
| 7 | New South Wales | Now (2/7/07) | Very weak | Totally enclosed licensed areas smokefree. | Many areas up to 75% enclosed (walls + roof) leave staff at risk. Other enclosed private workplaces still smoky. High roller gaming exempt; gaming machines allowed outdoors. |
| 8 | Northern Territory |
- | Shocking | Some very limited indoor areas smokefree. | Almost all licensed areas smoky and unsafe - and no timetable for improvement. |
Details:
Federal
and State Legislation on Passive Smoke
This Commonwealth
Department of Health and Ageing webpage has links to state and
territory as well as its own legislation relating to secondhand
smoke.
Queensland: VERY GOOD. Australia's best practice legislative model. All indoor areas of pubs and clubs smokefree - remaining smoking areas must be substantially outdoors, separate and unstaffed -including no live entertainment. Smokefree exemption for "high roller" gaming rooms the remaining blot. 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 now smokefree (from January 2006 - first state to do this). No exemption for "high roller" gaming. Remaining smoking areas must be substantially outdoors, separate and nearly all unserviced - but a percentage of outdoor areas may have food consumption and therefore be partly staffed. See smokefree places legislation details now in force.
WA: FAIR. 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. See WA law details See LICENCE TO KILL: PARTLY ENCLOSED SMOKING ROOMS
ACT: FAIR. So-called "total" indoor smoke bans (no exemption for "high roller" gaming) in fact leave smoking areas up to almost 75% enclosed - though employer groups have promised no-one will be required to work in these areas (it's not known to what extent this has been observed). See 75% enclosed loophole regulation and ASH release 25/10/05 ACT is considering banning smoking from these "outdoor" bars and cafes, and to unstaff all smoking areas along Queensland lines, but no firm timetable for this yet.
SA: WEAK. From Oct 31 '07, totally enclosed areas at last smokefree - with no exemption for "high roller" gaming. But the ban 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 See LICENCE TO KILL: PARTLY ENCLOSED SMOKING ROOMS
Vic: WEAK. July '07 ban on smoking in totally enclosed areas 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 See LICENCE TO KILL: PARTLY ENCLOSED SMOKING ROOMS
NSW: VERY WEAK. July '07 ban on
smoking in totally enclosed areas ("high roller" gaming room exempt) leaves weak
75%-enclosure loophole, allowing many eating and working areas to stay smoky. No indication of any move beyond this,
despite growing health evidence and strong public support. Much direct consultation with
employers, very little with employees. Allowed gaming machines to move into
"outdoor" areas despite promise not to do so. Some other non-government, non-public
workplaces may still have enclosed smoking areas. For latest, see
SmokeFree
Australia media release 15/9/07 See NSW
tobacco and smokefree legislation See LICENCE
TO KILL: PARTLY ENCLOSED SMOKING ROOMS
NSW smokefree laws and
how to complain: See new Cancer
Council NSW webpage
CALL
the NSW Department of Health Hotline (02) 9391 9111 if
you suspect your local pub or club is not complying with the new bans.
Or CALL
the Department
of Gaming and Racing (02) 9995 0851 to
complain about smoky gaming areas - including outdoor pokies.
NT: SHOCKING. The only jurisdiction still to set a deadline for an end to smoking in totally enclosed areas of licensed premises. A long-awaited review is still pending, leaving employees and patrons in serious health danger. NT smokefree public places legislation currently includes smoking bans in doorways, thoroughfares and dance floors in licensed venues. NT government has recently said it will get pubs smokefree - but has set no timeline, and worryingly promises only to "talk to the Australian Hotels Association" about it. NT has again won the Dirty Ashtray Award in 2008 for failing to act on this. See details See NT health groups' release 2/11/07
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
Providing
a safe workplace: the law
A smoky workplace is
unhealthy and unsafe. See this roundup (as at November 2002) of Commonwealth,
State and Territory laws setting out employers duty of care.
Encouraging compliance with
smoke bans
See these tips
for proprietors (from the US but equally relevant here).
DISABILITY DISCRIMINATION LAWS
Smoky public places discriminate against people with disabilities including
heart disease, emphysema, asthma, diabetes 2 and many other conditions. 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. Sadly, Sue 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 HREOC 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 recent successful action by a former bar attendant who
was awarded $466,000 for passive smoking injury in NSW hospitality workplace. More
details.
Countries with smoking banned in
all totally enclosed areas of workplaces, including licensed venues, now include:
Bhutan, Iceland, Irish Republic, Italy, Lithuania, New Zealand, Norway, Sweden,
UK and
Uruguay ... France will follow in 2008; and
many US states and Canadian provinces are also workplace-smokefree.
Smokefree restaurants and bars
worldwide
See Worldwide
summary (July 2006) from Canadian Cancer Society
See Worldwide
summary (April 2007) from American Nonsmokers' Rights Foundation - doesn't
include US states.
INTERNATIONAL TREATIES
Australia has ratified the Framework Convention on Tobacco Control (2004)
in which we recognise (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
Australia and all its states and territories are 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 (Ireland, Norway
etc), are quite "reasonably practicable" - and any policy exempting
tobacco smoke or leaving it complicated by elaborate exemptions can hardly be called "coherent."
See the World
Health Organisation (WHO) for good general info about secondhand
smoke, and our global treaty obligations to eliminate it.
LEGAL NEWS
Australia: Smoky
pub gives Aussie barworker tongue cancer - how many more?
21/11/05: A former Adelaide barworker has 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. Edge
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
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
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)