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...)

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

WORK SAFETY LAWS

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.  

WORLDWIDE TREND

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     

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