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; 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.  

ACT:  VERY GOOD. After its "75/25%" proved ineffective and unpopular, has moved to more effective comprehensive strategy - legislation passed December 2009 will make all public eating and drinking areas smokefree by end-2010, as well as underage events of whatever enclosure. No gaming exemptions.  Smoking (Prohibition in Enclosed Public Places) Amendment Bill 2009 passed, awaiting confirmation - see  the bill 

WA: GOOD. All "indoor" (more than roof + 50% walls) licensed areas smokefree; "high roller" gaming room is exempt and still smoky. Bill passed 2009 will make all unlicensed outdoor dining areas, and 50% of licensed "outdoor" areas, smokefree by end-2010. See  WA law details   See  END THE UNHEALTHY LOOPHOLES

Tasmania:  GOOD. All indoor areas of pubs and clubs smokefree (from 2006 - first Australian jurisdiction to do this). 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  END THE UNHEALTHY LOOPHOLES

NT: GOOD (TBC). The last jurisdiction to end to smoking in totally enclosed areas of licensed premises, due January 2010. Has now committed to making at least 50% of outdoor areas of pubs/clubs smokefree, and promised this will include all working areas as for Qld (above) and that these areas will be effectively separate. Unlicensed part-enclosed/outdoor dining areas will stay smoky. Status of gaming exemptions to be determined. See  SmokeFree Australia media release 10/9/09    See  END THE UNHEALTHY LOOPHOLES

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    END THE UNHEALTHY LOOPHOLES

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 legislation   and VicHealth  tobacco reforms  for latest rules, info hotline and links to legislation      END THE UNHEALTHY LOOPHOLES

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     NSW smokefree laws and how to complain about smoky workplaces:  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.  END THE UNHEALTHY LOOPHOLES    

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
1/9/09: The 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. 

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". In this case the Commission stated that "a smoky room is as much a barrier to an asthmatic as is a flight of steps to a person in a wheelchair."

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

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

See studies from Scotland 

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 

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

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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