ASH receives hundreds of complaints and requests for advice from people concerned about injuries to their health from both active and passive smoking. If you are considering legal action against tobacco companies operating in Australia,  for example to recover damages for smoking-related diseases, you can seek your own legal advice or for more information please see:

• ASH Legal Help

• Contact ASH

• How to introduce a smokefree workplace policy

There have been a number of successful legal actions in the United States involving billions of dollars in compensation paid to both smokers and governments.

How to "dob in" a drug (tobacco) dealer for breaking the law
If you have information about suspected smuggling of tobacco products or sales of illicit tobacco, known as chop chop, call the Australian Tax Office's hotline at 1800 060 062 or email details to illegaltobacco@ato.gov.au for investigation. Tobacco sales to children  is still a major problem and should be reported to local health authorities. 

Passive smoking complaints
Non smokers and even smokers can have major concerns about involuntary exposure to passive smoking in workplaces, shopping centres, sports stadia and other public places that may be ignoring legal obligations to provide safe workplaces. Although compliance with smokefree laws is very good in Australia, some breaches can occur and in NSW, for example, there is a complaints action line (tel.02 9391 9111) to deal with reports of smoking in enclosed public places where food is served (eg restaurants, cafes, dining areas in clubs and hotels). 

Employers who ignore legal obligations to provide safe workplaces run the risk of litigation, as in the landmark case below.
 

Workplace exposure to cigarette smoke

Marlene Sharp v Port Kembla RSL

In a major passive smoking case, Marlene Sharp, a 62 year old former bar attendant who worked at Port Kembla RSL Club was awarded $466,000 in damages by a NSW Supreme Court jury. 

Marlene Sharp's award is a world first: the jury for the first time accepted the causative link between exposure to passive smoke and the contraction of throat cancer. More details.

What action can you take if you are exposed to passive smoking?

There are several actions to consider, including:

• Raising your complaint with management and/or a union representative - as there are legal obligations for all workplaces to be safe.

• Writing a letter of complaint to the WorkCover Authority in your State or Territory. WorkCover inspectors have powers under OHS laws to visit workplaces, advise on legal obligations and if necessary, issue orders and fines for either breaches of a smokefree policy or failure to implement one.

• Consulting with a solicitor about taking legal action against your employer for breaching laws relating to workplace safety. Legal advice may be obtained from a specialist in personal injury or the Australian Plaintiff Lawyers Association.

• Obtaining more information about your legal rights by referring to the recent Cancer Council NSW Publication: "When smoke gets in your eyes....a guide to passive smoking and the law"

Disability discrimination

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 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.

Recovering the cost of quitting

Although over 126,000 smokers quit smoking each year in Australia, some smokers complain that the costs of nicotine replacement therapies or quit smoking courses are an obstacle in helping them to quit. Legal advice suggests that tobacco companies may be liable for indemnifying smokers for the cost of quitting in order to minimise a potentially greater damages claim.

Claims by ex-smokers to recover the costs of quitting may be brought in the Small Claims Tribunal which operate in most states with limits for example, of $25,000 in NSW. Claims may include out of pocket expenses and modest general damages for the discomfort of quitting. Claims are determined on merits and there is no guarantee of a successful outcome.

Forms can be obtained and lodged for a small fee with the Small Claims Tribunal in your State.

If you have any concerns about the practices of the tobacco industry, please contact ASH.

Page last updated on 9/5/05