Legislation for smoke-free environments

What are the reasons for legislated smoking bans?

Health reasons

Second-hand smoke (SHS) - sometimes referred to as environmental tobacco smoke - is made up of the mainstream smoke inhaled and then exhaled by a smoker, and side-stream smoke which drifts from the burning end of a cigarette. Breathing in the estimated 4,000 chemical substances contained in SHS is called passive smoking and affects both smokers and non-smokers.

There is no safe level of exposure to SHS and prolonged exposure can increase the risk of lung cancer and heart disease. It can also cause sore throats, nasal symptoms, asthma attacks and other chest illnesses.

These dangers have been extensively documented and since the mid-1980s. A number of major reviews of the evidence completed in Australia and other countries confirm the health risks of SHS exposure.

Air-conditioning and air treatment systems have been shown to be ineffective in removing SHS.

Workers in the hospitality industry where smoking is commonplace are at particular risk.

Legal reasons

The large amount of evidence on the harmful effects of passive smoking gathered over the last two decades has led to a number of landmark legal cases. There have been more than 35 legal cases in Australia and overseas in which people were compensated for damage to their health caused by passive smoking.

In October 2001, the case of Marlene Sharp v Port Kembla Hotel and Port Kembla RSL Club emphasised the danger of prolonged exposure to SHS in the workplace. This case marked the first time a court of law concluded that cancer of the larynx was associated with passive smoking in the workplace.

Other significant cases have led to convictions under Trade Practices and Disability Discrimination legislation.

Owners or licensees of establishments remain at risk of common law legal action if SHS causes harm to their employees or visitors.

 

What does the law say about smoking in public places?

The growing health evidence and the substantial numbers of legal cases associated with exposure to SHS have motivated an increasing number of governments throughout the world to pass legislation aimed at reducing exposure to SHS in indoor public places. Such jurisdictions include Ireland, Scotland, Italy, Sweden, New Zealand, Norway, Turkey, France, Iceland, Panama, Bhutan, most Canadian provinces and many US states and cities including California and New York City.

All Australian states and territories have laws that ban smoking in public places defined as enclosed including restaurants, shopping centres, educational institutions and entertainment venues. The Australian laws vary in strength between the jurisdictions.

Some local councils have prohibited smoking at some outdoor locations under their control. Such locations include children's playgrounds, outdoor dining venues and sporting venues.

 

The NSW Smoke-free Environment Act and amendments

Under the Smoke-free Environment Act 2000 smoking is prohibited in those parts of public places defined as enclosed. Until January 2005 the Act exempted most parts of licensed premises from the prohibition on smoking. From 3 January 2005, under the Smoke-free Environment Amendment Act 2004, licensed premises were required to begin a phased introduction of smoking bans. The Amendment Act provided for a total ban on smoking from 2 July 2007 in parts of these premises defined as enclosed.

The definition of an enclosed public place

The definition of an enclosed public place for the purpose of the Smoke-free Environment Act 2000 is contained within the Smoke-free Environment Regulation 2007 which came into force on 2 July 2007. The Regulation defines an enclosed space as one in which the total area of ceiling and wall surfaces of the public place is more than 75% of its notional ceiling and wall area. In other words, smoking is allowed in places that are as little as 25% open. Another key element of the regulation requires that for smoking to be allowed in a place that is less than 75% enclosed, 10% of the notional ceiling and wall area must be open to the elements at all times.

Cancer Council NSW believes that the definition of an enclosed place under the Smoke-free Environment Regulation 2007 does not adequately protect against the health effects of exposure to second hand smoke.

The obligation to prevent smoke drift

Another key element of the Smoke-free Environment Act 2000 is Section 10 of the Act. This Section provides that occupiers of premises in which smoking is allowed have a duty to take reasonable steps to prevent the penetration of smoke from the smoking-allowed area into smoke-free areas within the occupier's premises.

 

Enforcement of the Smoke-free Environment Act

Compliance with the Act is monitored by the NSW Health Department's Environmental Health Officers.

Proprietors have a legal obligation to ensure that patrons do not smoke in non-smoking areas of their venues. If a patron is smoking, proprietors must ask them to stop or move outside. Recent amendments to the Liquor Act 2007 [section 77(2)(c)], now enables venues to exclude a patron from the venue if that person smokes in a smoke-free area.

Penalties

For patrons, the current maximum penalty for a person smoking in a smoke-free area is $550.

A proprietor of a venue is guilty of an offence if a patron smokes in a smoke-free area. The maximum for an individual is $1,100; for a body corporate $5,500.

Proprietors, licensees, registered club secretaries, and managers who can also be fined if they fail to display no-smoking signs. The maximum penalty is $550 for an individual, and $2,750 for a body corporate.

Failing to comply with the directions or instructions of an inspector can also result in a penalty of up to $550.

Reporting breaches

Individuals who wish to report an apparent breach of the smoking restrictions can contact either the:

NSW Health's Tobacco Information Line at 1800 357 412 or tobacco@doh.health.nsw.gov.au or their local NSW Health Public Health Unit .

 

The NSW Occupational Health and Safety Act

Under the NSW Occupational Health & Safety Act 2000 employers are required to ensure the health, safety and welfare at work of employees and others. WorkCover, the agency charged with the administration and enforcement of the Act, interprets this to mean that smoking should be banned in the enclosed areas of workplaces.

Reporting breaches of the Occupational Health and Safety Act

Individuals who wish to report an apparent breach of the Occupational Health and Safety Act should contact the Work Cover Assistance Service on 13 10 50.

 

Resources

The Law and Justice Foundation of NSW website contains full text of Australian smoking-related legislation.

For NSW legislation as made, in force and repealed, go to the Parliamentary Legal Council's NSW legislation web site

The Cancer Council New South Wales publication
When smoke gets in your eyes...nose, throat, lungs and bloodstream: A guide to passive smoking and the law in NSW.

The WorkCover Authority of NSW publication Passive smoking in the workplace - Policy and Control.

 

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