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...)

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

WORK SAFETY LAWS

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.  

WORLDWIDE TREND

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     

EARLIER CASES

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)

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