15.4 Smoking bans in key public areas and environments

Last updated: January 2017
Suggested citation: Grace C and Tumini V. Ch 15. Smokefree environments. 15.4 Smoking bans in key public areas and environments. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2017. Available from http://www.tobaccoinaustralia.org.au/chapter-15-smokefree-environment/15-4-overview-of-key-public-areas-and-environments

All Australian states and territories have adopted legislation banning smoking in enclosed workplaces (with a number of exceptions and variations as laid out in the state and territory summaries; see Chapter 15, Section 15.7). Smoking bans were voluntarily adopted by employers in most indoor workplaces throughout Australia many years before such legislation was introduced, primarily based on acceptance by employers that secondhand smoke (SHS) exposure presented an occupational health and safety risk to employees.1,2 Section 19 of the Work Health and Safety Act 2011 (Cth) (formerly the Occupational Health and Safety Act 1991)i imposes on all employers a duty to ensure, so far as is reasonably practical, that their workers are safe from injury and risks to their health while at work. Similar legislation exists in all Australian states and territories. In 2003, the National Occupational Health and Safety Commission (NOHSC) recommended that exposure to environmental tobacco smoke be eliminated in all Australian workplaces. The Guidance Note on the Elimination of Environmental Tobacco Smoke in the Workplace (3019/2003) states: ‘The NOHSC has agreed that, given the health risks of environmental tobacco smoke, all Australian workplaces should be made completely smokefree as soon as possible, i.e. environmental tobacco smoke should be excluded’ (p1).3

Implementing smokefree policies and legislation in some workplaces has proved more controversial and challenging than in others. A detailed description of the legislation applicable in each state and territory is set out in Chapter 15, Section 15.7. The material below provides an overview of the unique hurdles faced in gaining support for or implementing policies to protect against SHS in a number of venues and environments. Issues relevant to restriction of smoking in outdoor areas that do not constitute workplaces are covered in Section 15.5. Data about the acceptability of various sorts of policies is covered in Section 15.2. Evidence about the feasibility of, and compliance with, smoking bans is covered in Section 15.8. The final sections of this chapter describe evidence that such bans have been associated with changes in exposure to environmental tobacco smoke, smokers’ behaviour (Section 15.9) and declines in illness and deaths from asthma and heart disease (Section 15.10).

15.4.1 Hospitality venues

Success in Canada, New Zealand, Norway, Ireland and California in eliminating smoking in pubs and clubs, and subsequently in reducing respiratory problems for staff, encouraged the push for smokefree hospitality venues in Australia.4-7

Smoking bans in cafés and restaurants came into force in Australia prior to bans in pubs and clubs in every state and territory. Public support for bans in dining areas was higher than support for bans in pubs and clubs at the time smokefree dining legislation was introduced, and the tobacco and hotel industries vigorously opposed bans in licensed premises. In the 1993 parliamentary debates for the introduction of smokefree dining legislation in the Australian Capital Territory (the first jurisdiction in Australia to introduce such legislation), the Minister for Health indicated that the proposed legislation would not apply to pubs and clubs due to the challenges for owners and managers in introducing smoking bans in these areas where smoking ‘traditionally occurred’; the Minister stated the government would prefer to transition to smoking bans in licensed premises over time (p4693).ii

All Australian states and territories have now banned smoking indoors at hospitality venues.iii  Bans on smoking in outdoor drinking and dining areas differ between jurisdictions (see Chapter 15, Section 15.7).

15.4.1.1 Sleeping accommodation

Unlike the US, where more than 28 states and hundreds of local cities and counties had by 2011 legislated to require a minimum proportion of smokefree rooms in hotels,8 and where five states and 176 municipalities as at January 2017 required 100% smokefree accommodation,9 in Australia, most states and territories retain exemptions from smoking bans for private rooms in sleeping accommodation, including hotels and motels. However, smoking in private rooms in hotels and motels appears to have been banned in the ACT,iv NSWv and the NT.vi

In addition, several international hotel chains have announced that they will no longer allow smoking in private rooms and have elected to be entirely smokefree.10 In January 2006, Westin became the first hotel chain to ban smoking at all 77 locations in the US, Canada and the Caribbean. Its smokefree policy has been since extended to include all hotels in Ireland, Scotland, Australia, New Zealand and Fiji.vii In May 2012, Westin also announced that the Westin Paris, Vendome would be smokefree.viii In October 2006, Marriott implemented a 100% smokefree policy in all 2300 hotels in the US and Canada. This policy affects more than 400,000 guest rooms.ix In September 2016, Choice Hotels International announced that all Comfort Inn motels would be smokefree from 1 January 2017, making Comfort the largest smokefree hotel brand in the US and Canada.x Other 100% smokefree hotel chains in the U.S. include: Shilo Inns, Heartland Inns and many independent smokefree hotels across the US, such as the legendary Greenbrier Hotel and Casino in West Virginia.11

15.4.1.2 Cafés, restaurants

In the 1990s the restaurant trade supported a ‘self regulation’ approach to implementing smokefree areas in restaurants.12 A 1993 study examined whether non-smoking policies had been implemented in accordance with the restaurateurs’ perceived need for such policies. The research highlighted a large discrepancy between owner-perceived need and actual implementation: only one-third of owners who thought they should provide smokefree areas actually provided such areas. The researchers concluded that: ‘self-regulation has not worked, as judged by the restaurant industry’s own criterion of provision according to owners’ perception of need’ (p1287).13

In 1994, the Australian Capital Territory became the first Australian government to ban smoking in restaurants. The successful14 and popular ban became ‘a reference point to dispel industry scare mongering that the hospitality industry would face ruin because of smokers’ reduced dining’ (p283).15 The Australian Capital Territory ban set a precedent: within six years of its introduction six out of eight states and territories moved to ban smoking in restaurants. By 2003 all states and territories had implemented smokefree indoor dining, with bans commencing in Queensland in 2002 and in the Northern Territory in 2003.

A 2002 evaluation of South Australia’s smokefree dining laws found that the legislation had ‘been adhered to by both the majority of restaurateurs and customers, and was inexpensive for restaurateurs to implement. Smokefree dining legislation can be implemented with confidence’ (p44).16 Further evidence on the feasibility of, and compliance with, such legislation is described in Chapter 15, Section 15.8.

15.4.1.3 Al fresco dining areas

All Australian jurisdictions have introduced legislation restricting smoking in outdoor dining areas.xi However, the specific laws in place vary between jurisdictions, with some jurisdictions adopting more comprehensive restrictions than others. For example, in Queensland smoking is prohibited in an ‘outdoor eating or drinking place’ when food or drink is available for consumption.17 On the other hand, in New South Wales smoking is only prohibited in ‘commercial outdoor dining areas’ while food is being consumed or is available for purchase and consumption. Smoking is still permitted in outdoor areas where only drinks are served.18 South Australia, Tasmania and Victoria have all adopted a similar model to that adopted in New South Wales,19-21 while the Australian Capital Territory, Northern Territory and Western Australia have adopted similar legislation to that in place in Queensland.22-24

Prior to the enactment of state legislation, a number of local governments across Australia implemented smoking bans in al fresco dining areas under their control. These include Fremantle, the Vincent and Joondalup councils in Western Australia, and a number of councils in New South Wales. As of January 2014, 42 New South Wales councils had adopted or voted to adopt smokefree al fresco dining policies. This includes regional councils (such as Bega Valley, Newcastle and Wagga Wagga) and metropolitan councils (including Leichhardt, Mosman, Newcastle, Parramatta, Pittwater, Ryde, Willoughby and Waverley).xii Similarly, a number of Victorian councils adopted smoking bans in some or all al fresco dining areas under their control (including the City of Melbourne, Baw Baw Shire and Greater Shepparton City Council).25

15.4.1.4 Pubs and clubs

Licensed premises were among the last indoor environments and workplaces for smoking to be banned. (The reasons for this delay are detailed in Chapter 15, Section 15.3). Licensed premises were also the environment where people and particularly workers were the most likely to be exposed to SHS in Australia.26 The first state or territory to ban smoking in pubs and clubs was the Australian Capital Territory in 1998. The Northern Territory was the last jurisdiction to act, bringing in a ban on smoking in enclosed areas of licensed premises from 2 January 2010.

The Australian Hotels Association was the most vocal opponent of banning smoking in licensed premises.27 A 2005 study examining the media themes (1996–2003) of bar smoking bans found that the Australian Hotels Association largely kept away from the health agenda and sought to reframe a ban as being economically devastating, impractical, and ‘un-Australian’. The health effects of SHS were virtually uncontested in the media. The researchers concluded that, ‘either explicitly or by implication, the health perspective remained the core, unavoidable starting point of every media report about ETS’ (p683).27

15.4.1.5 Casinos and poker machine venues

In several states and territories, high roller rooms in casinos are exempt from smokefree legislation.28-31 However Tasmania, the Australian Capital Territory and South Australia do not provide exemptions in their respective acts, and require all enclosed areas of casinos to be smokefree. Western Australia allows smoking in the International Room at the Burswood Island Casino, provided the area meets ventilation requirements.32

Internationally, casinos in New Zealand are now smokefree. Recently, the government of Macau (home of the world’s largest gambling hub) also announced its intention to introduce laws which would expand itss existing restrictions on smoking in casinos. In Macau, smoking is currently banned on ‘mass market’ gaming floors. The proposed restrictions would cover VIP gambling rooms, and would abolish the ‘smoking lounges’ that are currently permitted.33

Smokers contribute more to gambling revenue than non-smokers and, according to a gambling industry report, ‘smoking is a powerful reinforcement for the trance-inducing rituals associated with gambling’ (p231).34 Smokefree policies in Victorian gambling venues were found to lead to an abrupt, long-term decrease in electronic gaming machine losses.35 Public health advocates have reframed this argument as reduced time on poker machines being beneficial to smokers who may also have a gambling problem.35

In New South Wales, licensed premises that provide poker machines have moved the machines to outdoor areas to enable smokers to play the machines while smoking.36,37 Outdoor gambling areas have also been set up in the Australian Capital Territory, South Australia, Tasmania and Western Australia. In March 2011 the South Australian Government’s Office of the Liquor and Gambling Commission directed Adelaide Casino to shut down poker machines that the casino had moved to an outdoor courtyard to allow smokers to continue gambling outside.38

15.4.2 Parliaments and government buildings

The Commonwealth Department of Health adopted a smokefree workplace policy with effect from 1 December 1986. A smokefree policy in enclosed areas was adopted in November 1986, providing for all Commonwealth government departments to become smokefree by March 1988.39

Australia’s Parliament House was declared smokefree by the then Presiding Officers, Senator the Hon. Kerry Sibraa and the Hon. Leo McLeay MP in May 1991.

Enclosed areas of the New South Wales parliamentary precincts became smokefree in January 1994; this was the last public service department and the last parliament in Australia to ban smoking in enclosed areas.

By the mid-1990s, all state and Commonwealth government offices were smokefree.

15.4.3 Hospitals and health facilities

While smoking within enclosed areas of hospitals and health facilities is no longer permissible in any Australian jurisdiction, the debate continues about smoking on the grounds and in outdoor areas of hospitals and health facilities. The World Health Organization has recommended that all health care premises and their immediate surrounds be smokefree, and that healthcare staff be provided with assistance to quit smoking where appropriate.40

Some Australian states and territories (such as the Australian Capital Territory, South Australia and Western Australia) have adopted Departmental policies, which ban smoking completelywithin the grounds of public health facilities. In other states and territories, smoking is permitted in designated outdoor areas.

A totally smokefree policy for Western Australia Department of Health premises and grounds came into effect in 2008, and a similar policy for South Australian Health facilities commenced in May 2010. The Australian Capital Territory introduced its smokefree policy at all ACT health facilities on 1 May 2009, with all designated outdoor smoking areas removed from 1 September 2014. The smokefree policies in each of these jurisdictions apply to staff, patients and visitors, and apply throughout the hospital or health service grounds including car parks. Persons wishing to smoke must leave the grounds to do so.

In 2009, the Northern Territory introduced a smokefree policy banning smoking on Department of Health and Families premises, with hospitals permitted to identify up to two designated outdoor smoking areas for patients only.

The 1999 New South Wales Health Smoke Free Workplace Policy provided for all of its facilities to work towards becoming totally smokefree over a number of years. Under the final phase of policy implementation, smoking would be banned throughout health facility buildings, vehicles and property. In January 2005, New South Wales Health issued a mandatory policy directive that health facilities should continue to work towards becoming totally smokefree in accordance with the 1999 policy, after meeting criteria relating to public awareness, staff consultation and provision of smoking cessation support for staff. In January 2015, a new mandatory directive was released requiring all New South Wales Health buildings, grounds and vehicles to be smokefree with the exception of ‘designated outdoor smoking areas’ as determined by Local Health Districts and ‘speciality network governed statutory health corporations’ that choose to provide such areas using a smokefree by-law.41 This policy directive is due to be reviewed again in January 2020.

In 2006, smoking was banned in all Queensland state hospital grounds, other than in outdoor nominated smoking places. As of 1 January 2015, this ban was extended to prohibit smoking anywhere at or within 5 metres beyond the boundary of all Queensland public and private health facilities.42

In Victoria, state legislation was introduced on 13 April 2015 which prohibits smoking at or within 4 metres of an entrance to a hospital, public health service or registered community health centre.43

In Tasmania, state legislation prohibits smoking in any public premises designated by the occupier as a smokefree area.20 In 2013, all premises occupied by the Tasmanian Department of Health and Human Services (including public hospitals) were declared smokefree by an internal directive.

15.4.4 Institutions

Generally, Australian legislation banning smoking in enclosed workplaces provides exemptions for workplaces that are also homes or dwelling places, such as prisons, mental health institutions and nursing homes.

15.4.4.1 Mental health facilities

Smoking prevalence is high among people with a mental illness. While smoking rates in the general population have fallen to under 15%,44 daily smokers are twice as likely to report suffering high or very high levels of psychological distress, and to have been diagnosed or treated for a mental health condition, as those who have never smoked.44 Rates of smoking are higher still among those who live with serious mental illness (see Chapter 9, Section 9.6.4). Many policies and practices within mental health treatment services in the past have acted to reinforce smoking behaviour and discourage cessation attempts.45 While staff have been concerned about the feasibility of introducing smokefree policies, two major reviews of the effects of smokefree policies in psychiatric institutions found that patients generally adapted more quickly than staff, staff concerns about difficult or aggressive reactions from patients were generally unfounded, and total bans were more successful than partial bans (p69).46,47 In addition to improving the overall health of patients, medical professionals have observed that smoking bans in mental health facilities may reduce the risk of self-burn injuries.48

Consistent with smokefree policies adopted within other sectors of health care services, mental health care services should be reinforcing smokefree messages, supporting smokers to quit and managing nicotine dependence during hospital admissions. Research indicates that support from mental health nursing staff, adequate patient consultation, clear leadership and management support, clear auditing and reporting of patients’ smoking status and adequate provision of nicotine-dependence treatment are important in ensuring successful implementation of smokefree policies in inpatient psychiatric facilities.49,50

In more recent years, a number of Australian jurisdictions have acted to ensure that policies and practices in mental health facilities are not reinforcing smoking behaviour, as has occurred in previous decades. These policies require smokefree mental health services and include a focus on staff training, supporting smokers to quit and the appropriate management of nicotine dependence and withdrawal symptoms during hospital admissions and outpatient programs.

In 2009, the New South Wales Department of Health developed guidelines to facilitate the adoption of its Smoke Free Workplace Policy in mental health facilities.51 This followed a trial, which concluded that a smokefree policy was entirely feasible for mental health units. The biggest barriers encountered were ‘staff resistance, habit and the leaden hand of administrative procedure’ (p1).52 As noted further above, in January 2015 New South Wales Health released a mandatory directive requiring all New South Wales Health buildings, grounds and vehicles to be smokefree with the exception of ‘designated outdoor smoking areas’.41 This mandatory directive covers government-operated mental health facilities. Smoking also appears to be prohibited in common areas of non-government mental health facilities under state legislation in New South Wales, but is likely to be permitted in bedrooms or private living areas contained in these facilities.xiii

Under the Smoke-free WA Health System Policy, West Australian Department of Health premises (including mental health facilities) became smokefree from 1 January 2008. The state’s Council of Official Visitors called for a review of the policy in its 2010 annual report, following reports of mental health patients poking electricity sockets with paper clips to obtain a spark to light a cigarette.53 In January 2013, the policy was amended to include a partial exemption for involuntary adult mental health patients.54 Before the exemption will apply, a number of specific criteria must be satisfied. These criteria are detailed in guidelines developed by the Western Australian government.55

The South Australian Department of Health introduced a totally smokefree policy for public mental health institutions from November 2010, six months after the smoking ban commenced in other public health facilities. The policy stipulates that in ‘crisis situations’ involving consumers or visitors who are highly distressed, the policy should be applied in a flexible manner so as not to add further distress to the situation.56 Smoking appears to be prohibited in shared areas of non-government mental health services located in South Australia (but is unlikely to be prohibited in bedrooms or private living areas contain in these facilities).xiv

In Victoria, Melbourne Health voluntarily adopted a totally smokefree policy for its mental health facilities in the city’s north and west in April 2009. Under state legislation, the general prohibition on smoking in enclosed workplaces contains an exemption for an area within an approved mental health service which is declared by the Secretary to be a smoking area.57 However, all declarations previously made under this exemption were revoked on 2 June 2015 (effective from 1 July 2015).58 Smoking is therefore currently prohibited in all approved mental health services in Victoria.

15.4.4.2 Prisons

High smoking prevalence rates are reported among prisoners. Almost three-quarters of prison entrants are current smokers, with 69% of entrants reporting they smoke daily.59 The threat of SHS exposure in prisons where smoking is permitted in enclosed spaces is high.60-62 Incarceration can also lead to non-smokers taking up smoking and existing smokers increasing their cigarette consumption.63 The New South Wales Department of Corrective Services reported in 2007 that ‘there have been a small number of workers’ compensation claims that have attempted to link environmental tobacco smoke (ETS) exposure to illness. One of these claims related to alleged sensitivity developed by an ex-smoker and cancer sufferer to ETS (p1).64

In view of the adverse health effects arising from staff and prisoner exposure to secondhand smoke, and the potential for litigation and workers’ compensation claims, smoking bans are becoming increasingly more common in Australian prisons. However, the adoption of smoking bans in Australian prisons has not occurred without controversy. Concerns have been raised about prisoners becoming more recalcitrant as a result of smoking bans. In Victoria, for example, rioting which took place at the Melbourne Remand Centre in July 2015 was believed by many to have been sparked by the adoption of state legislation banning smoking in enclosed areas of Victorian prisons (discussed further below).65,66 However, research undertaken in the US has found little or no evidence of an increase in violence following the implementation of smokefree policies in prisons, and there are examples of successful implementation of smoking bans without rioting or unrest.67,68

Some researchers have also suggested that the adoption of smoking bans in prisons is likely to fuel black market trade in tobacco.69

Despite these concerns, studies indicate there are positive health outcomes associated with the implementation of smoking bans in prisons. For example, researchers in the US have observed that the implementation of smoking bans in prisons is associated with a sudden and substantial decline in prisoner mortality, with a greater effect on mortality observed for prisoners suffering from mental illness.70,71 Indoor air quality in prisons also appears to improve following implementation of smoking bans.67

15.4.4.2.1 Smoking bans in Australian prisons

Some Australian prisons and other corrective services facilities still permit smoking indoors with restrictions, but this is not consistent across the country. Most Australian jurisdictions have either adopted legislation banning smoking in prisons altogether, or have taken steps towards doing so.

The Northern Territory was the first Australian jurisdiction to implement a total smoking ban in prisons. The ban was introduced on 1 July 2013.72 Tasmania introduced a complete ban in February 2015, and Victoria followed in July 2015.73,74 From 10 August 2015, prisons in New South Wales are required to be smokefree, however correctional officers in New South Wales are permitted to smoke in designated smoking areas.75

In 1997, a total smoking ban was introduced in Queensland’s Woodford prison. However the policy was abandoned after 120 inmates rioted following the policy’s implementation. Since 5 May 2014, smoking has been completely banned in Queensland prisons. Tobacco and other smoking-related products (such as cigarette lighters, matches, papers and filters) are also banned in all corrective services facilities.76

In South Australia, smoking is currently prohibited in all communal living areas in prisons, as well as Department of Correctional Services buildings, and within 4 metres of building entrances.77 Smoking is generally permitted in prison cells, as these are considered residential premises. However, the Adelaide Remand Centre went completely smokefree in March 2016, as a pilot to inform further smokefree policies in South Australian prisons.77

The West Australian Department of Corrective Services introduced a trial smoking ban in enclosed areas of Greenough regional prison in 2008. Prisoners were provided with nicotine patches, lozenges and support programs to help them quit or reduce smoking. The department subsequently issued a policy banning smoking in enclosed areas of prisons across Western Australia, with effect from 30 June 2009. Under the policy, prisoners are only permitted to smoke in designated outdoor areas and may not smoke inside cells or units.78 The Parliament of Western Australia is yet to pass state legislation completely banning smoking in prisons, despite calls from the WA Prison Officers Union to do so.79 Policies in place in the two correctional facilities located in the Australian Capital Territory prohibit smoking inside prison buildings (including cells), but permit smoking in designated outdoor areas. In August 2015, the ACT government announced a commitment to the implementation of a complete smoking ban in ACT prisons, however it is unclear when the ban will be introduced.80 xv

15.4.4.2.2 Smoking bans in prisons overseas

In June 2010 the New Zealand Government announced that smoking would be prohibited in prisons across New Zealand in order to reduce health risks associated with SHS exposure and risk of injury caused by cigarette lighters. On 1 July 2011, New Zealand became the first country in the world to introduce a complete ban on smoking in prisons. Canada’s Commissioner of Correctional Service issued a directive that federal prisons must be totally smokefree from April 2008, including outdoor areas.81 Prisoners successfully challenged the legality of the policy in the Canadian Federal Court in October 2009. However the Federal Court’s decision was overturned and the smokefree policy was reinstated in 2010. The Federal Court of Appeal ruled that the Commissioner of the Correctional Service had authority to issue the smokefree directive in accordance with laws governing penitentiaries.82 An increasing number of Canadian provinces are also implementing smoking bans in correctional facilities.83

In England and Wales, it is possible for part of a prison to be exempt from regulations banning smoking in the workplace. However, to gain an exemption, an area or room within a prison must be designated as a smoking area by the person in charge of the premises, must be used as accommodation for persons aged 18 years and over, must be completely enclosed except for doors and windows and must not have a ventilation system which vents to other parts of the premises.84 The Isle of Man became the UK’s first completely smokefree prison in 2008. All prisons in Wales have been operating under a totally smokefree policy since January 2016. From March 2016, four English prisons (Channings Wood, Dartmoor, Erlestoke and Exeter) have also been completely smokefree. The UK government has indicated that it ultimately intends to extend the ban to all prisons in England.85

Since January 2015, the Federal Bureau of Prisons in the US has prohibited tobacco smoking in any form on the grounds of Bureau institutions and offices (except as part of authorised inmate religious activity). However, staff and visitors are permitted to smoke in designated outdoor areas.83 According to the American Non-smokers’ Rights Group, as of 2 January 2017 a total of 21 US states and one territory (Puerto Rico) also require correctional facilities to be completely smokefree (both indoors and outdoors).83 Many other states require correctional facilities to be smokefree indoors.83

15.4.4.3 Immigration detention centres

The operational procedures of the provider for onshore detention services in Australia (Serco) outline the measures that are in place regarding smoking in Australian immigration detention centres. All staff, visitors and detainees are advised that Commonwealth law specifically prohibits smoking in an ‘enclosed area of Commonwealth property’ and states that smoking is forbidden in enclosed areas within immigration detention centres. Smoking is permitted in outside courtyards and exercise areas, covered areas such as walkways, and other external areas as specified by signage.

15.4.4.4 Nursing homes

In most Australian states and territories, personal living areas in residential care facilities are exempt from general legislative bans on smoking in enclosed workplaces. For example, under the Smoke-free Environment Act 2000 (NSW), smoking is prohibited in common areas of nursing homes (such as living rooms, hallways and foyers) as these are considered to be ‘enclosed public places’. However smoking may be permitted inside personal living areas that are not accessible by the public (as these are unlikely to be considered ‘public’ places).87 Similarly, under the Tobacco Act 1987 (Vic), the ban on smoking in an enclosed workplace does not apply to a personal sleeping or living area in a residential care facility.88 vxi On the other hand, in Queensland smoking is prohibited at or within 5 metres of the boundary of a residential aged care facility (including in common areas and private living spaces), but is permitted in designated outdoor smoking areas.89

Many nursing homes have implemented their own restrictions on smoking in recognition of the health risks of SHS and risk of fire, (such as requiring residents to be supervised or to wear a smoke retardant apron while smoking). Cigarette-related fires are thought to have caused a number of accidental deaths in nursing homes.90-93 After a death in South Australia, the Commonwealth Department of Health and Ageing distributed a recommendation of the South Australian Deputy State Coroner to all aged care providers. The recommendation noted that the practice of allowing residents disabled by dementia and/or with reduced manual dexterity to smoke unsupervised was intrinsically unsafe, and that such residents may require close supervision by either family members or staff.94

ii.See Mr Berry, Hansard of the Australian Capital Territory Legislative Assembly, 16 December 1993 p4691
http://www.hansard.act.gov.au/hansard/1993/pdfs/19931216.pdf and 16 December 1993 p4693 http://www.hansard.act.gov.au/hansard/1993/pdfs/19931216.pdf

iii. Indoor hospitality venues fall under the general prohibition on smoking in enclosed public places/workplaces operating in each jurisdiction.

iv. Section 6 of the Smoke-free Public Places Act 2003 (ACT) states that a person commits an offence if the person smokes in an enclosed public place. An enclosed area in a hotel or motel is likely to be considered a an ‘public place’ in view of the definition of ‘enclosed public place’ contained in section 3 of the Act. The definition specifically lists hotels and motels as examples of venues that may be considered ‘public places’.

v. See Schedule 1 of the Smoke-free Environment Act 2000 (NSW), which lists motels and hostels (other than residential accommodation) as examples of places that are smoke-free if they are enclosed public places. Under section 7 of the Act, it is an offence to smoke in a smoke-free area.

vi. Section 9 of the Tobacco Control Act (NT) states that a person must note smoke in a smoke-free area. Section 7 of the Act notes that an ‘enclosed public area’ is a ‘smoke-free area’.  A private hotel or motel room which is accessible by the public for a fee would arguably be considered an ‘enclosed public area’.

xiii. As they are accessible by a section of the public, common areas in mental health facilities appear to be considered ‘enclosed public places’ and are therefore smoke-free under section 6 of the Smoke-free Environment Act 2000 (NSW). On the other hand, bedrooms or private living areas are likely to be considered residential.

xiv. Bedrooms or private living areas within mental health facilities are likely to be considered ‘residential premises’, and therefore specifically excluded from the general prohibition against smoking in ‘enclosed workplaces’ contained in section 46 of the Tobacco Products Regulation Act 1997 (SA).

xv. Under section 86(1) of the Correction Management Act 2007 (ACT), the director-general can define an area at a correctional centre as an area in which smoking is prohibited.

xvi. However, it is important to note that in order to comply with state/territory occupational health and safety legislation, employers may be required to implement their own smokefree policies prohibiting smoking in private living areas while staff are present.

 

Recent news and research

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References

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17. Tobacco and Other Smoking Products Act 1998 (QLD), see sections 26W and 26X. Available from: http://www.austlii.edu.au/au/legis/qld/consol_reg/taospr1998430/index.html#s12

18. Smokefree Environment Act 2000 (NSW), see sections 4A and 6A. Available from: http://www.austlii.edu.au/au/legis/nsw/consol_act/sea2000247/

19. Tobacco Products Regulation Act 1997 (SA), see section 52. See also Tobacco Products (Bans in Public Areas - Longer Term Regulations) 2012 (SA), regulation 6. Available from: http://www.austlii.edu.au/au/legis/sa/consol_act/tpra1997293/

20. Public Health Act 1997 (TAS), see section 67B. Available from: http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/index.html#s72a

21. Tobacco Act 1987 (Vic), see sections 3F and 5EA which come into operation on 1 August 2017. Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/

22. Smokefree Public Places Act 2003 (ACT), see sections 9B-9D. Available from: http://www.austlii.edu.au/au/legis/act/consol_act/sppa2003216/index.html

23. Tobacco Control Act (NT), see sections 5B and 7(1). 2002. Available from: http://www.austlii.edu.au/au/legis/nt/consol_act/tca163/

24. Tobacco Products Control Act 2006 (WA), see section 107B. Available from: http://www.austlii.edu.au/au/legis/wa/num_act/tpca20065o2006317/index.html#sch2

25. Callinan J, Clarke A, Doherty K, and Kelleher C. Legislative smoking bans for reducing secondhand smoke exposure, smoking prevalence and tobacco consumption. Cochrane Database of Systematic Reviews, 2010; 4:CD005992. Available from: http://www2.cochrane.org/reviews/en/ab005992.html

26. Wakefield M, Cameron M, Inglis G, Letcher T, and Durkin S. Secondhand smoke exposure and respiratory symptoms among casino, club, and office workers in Victoria, Australia. Journal of Occupational and Environmental Medicine, 2005; 47(7):698–703. Available from: http://www.joem.org/pt/re/joem/abstract.00043764-200507000-00005.htm;jsessionid=Jp3Yr6bQmV3np0Khmq3LlZ25G6GrgJkP2mzKVJDXzJxGwL3pLhCT!2138746202!181195629!8091!-1

27. Champion D and Chapman S. Framing pub smoking bans: an analysis of Australian print news media coverage, March 1996-March 2003. Journal of Epidemiology and Community Health, 2005; 59(8):679–84. Available from: http://jech.bmj.com/cgi/content/abstract/59/8/679

28. Tobacco Act 1987 (Vic), section 5A(2)(c). Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/

29. Smokefree Environment Act 2000 (NSW), section 11. Available from: http://www.austlii.edu.au/au/legis/nsw/consol_act/sea2000247/

30. Tobacco Control Act (NT), section 11(1). See also Tobacco Control Regulations (NT), regulation 8., 2002. Available from: http://www.austlii.edu.au/au/legis/nt/consol_act/tca163/

31. Tobacco and Other Smoking Products Act 1998 (QLD), section 26R(2)(c). Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/

32. Tobacco Products Control Regulations 2006 (WA), see regulation 10(2). Available from: http://www.austlii.edu.au/au/legis/wa/consol_reg/tpcr2006380/index.html#s34

33. Wong S. No break for Macau casinos as government plans full smoking ban. Bloomberg Business, 2015. Available from: http://www.bloomberg.com/news/articles/2015-06-30/no-break-for-macau-casinos-as-government-plans-full-smoking-ban

34. Harper T. Smoking and gambling: a trance inducing ritual. Tobacco Control, 2003; 12(2):231–3. Available from: http://tobaccocontrol.bmj.com/cgi/content/full/12/2/231

35. Lal A and Siahpush M. The effect of smoke-free policies on electronic gaming machine expenditure in Victoria, Australia. Journal of Epidemiology and Community Health, 2008; 62(1):11–5. Available from: http://jech.bmj.com/cgi/content/abstract/62/1/11

36. Clennell A and Tibbitts A. Clubs get green light for outdoor pokies. Sydney Morning Herald, 2007; 22 July. Available from: http://www.smh.com.au/news/national/clubs-get-green-light-for-outdoor-pokies/2007/07/22/1185042950413.html

37. Ewart H. Casino sparks anti-smoking outrage. ABC 7.30 Report, 2008; 11 January. Available from: http://www.abc.net.au/7.30/content/2007/s2136888.htm

38. Kemp M. Casino ‘pokies dodge’ up in smoke after Parliament intervenes. The Advertiser, 2011; 10 March. Available from: http://www.adelaidenow.com.au/news/south-australia/how-the-casino-is-dodging-the-pokies-venue-smoking-ban/story-e6frea83-1226018727538

39. Stanton M. Public Service Board memorandum 86/9055: towards a smoke-free workplace – guidelines for achieving smoke-free working environments in the APS. Canberra: Australian Government, 1986. Available from: http://www.apsc.gov.au/circulars/circular869055.htm

40. World Health Organization. WHO Report on the Global Tobacco Epidemic, 2009: implementing smoke-free environments. Geneva: WHO, 2009. Available from: http://www.who.int/tobacco/mpower/en/index.html

41. New South Wales Health, Policy Directive: NSW Health Smoke-free Health Care Policy (13 January 2015). Available from: http://www0.health.nsw.gov.au/policies/pd/2015/pdf/PD2015_003.pdf

42. Tobacco and Other Smoking Products Act 1998 (QLD), section 26VO. Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/

43. Tobacco Act 1987 (Vic), section 5RH. Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/

44. Australian Institute of Health and Welfare. 2013 National Drug Strategy Household Survey: Survey Report. Drug statistics series no. 28, AIHW cat. no. PHE 183.Canberra: AIHW, 2014. Available from: Available at: http://www.aihw.gov.au/publication-detail/?id=60129549469

45. Quit SA. Mental health. Adelaide: Quit SA, Cancer Council South Australia, 2007. Available from: http://www.quitsa.org.au/aspx/mental_health.aspx

46. Ragg M and Ahmed T. Smoke and mirrors: a review of the literature on smoking and mental illness. Tackling tobacco program research series no. 1, Sydney: Cancer Council NSW, 2008.

47. Hashimoto K, Makinodan M, Matsuda Y, Morimoto T, Ueda S, et al. Smoking bans in mental health hospitals in Japan: barriers to implementation. Annals of General Psychiatry, 2015; 14:35. Available from: http://www.ncbi.nlm.nih.gov/pubmed/26516338

48. Wielogorska NL, Harries V, Gearon D, and Dheansa B. A ban on smoking in psychiatric hospitals would reduce self burn injuries. BMJ, 2016; 352:i926. Available from: http://www.ncbi.nlm.nih.gov/pubmed/26883308

49. Stockings EA, Bowman JA, Bartlem KM, McElwaine KM, Baker AL, et al. Implementation of a smoke-free policy in an inpatient psychiatric facility: Patient-reported adherence, support, and receipt of nicotine-dependence treatment. Int J Ment Health Nurs, 2015. Available from: http://www.ncbi.nlm.nih.gov/pubmed/25970237

50. Lawn S and Campion J. Achieving smoke-free mental health services: lessons from the past decade of implementation research. International Journal of Environmental Research and Public Health, 2013; 10(9):4224-44. Available from: https://www.ncbi.nlm.nih.gov/pubmed/24025397

51. New South Wales Health. Smokefree mental health facilities in NSW: guidance for implementing. 30 July North Sydney: NSW Health, 2009. Available from: http://www.health.nsw.gov.au/policies/gl/2009/pdf/GL2009_014.pdf

52. Rich D and Knowlden S. Towards a smoke free mental health workplace: Midas Tobacco Project: mental health goes smokefree. South West Sydney Area Health Service/Fairfield Department of General Practice, 2002.

53. Phillips Y and Cann L. Psychiatric patients risking life lives for a cigarette. News.com.au, 2011; 26 March. Available from: http://www.news.com.au/psychiatric-patients-risking-lives-for-a-cigarette/story-e6frg12c-1226028565071?from=public_rss

54. Department of Health, Western Australia. Operational Directive: Smoke Free WA Health System Policy (OD 0414/13). Last update: 18 January 2013; Viewed Available from: http://www.health.wa.gov.au/circularsnew/pdfs/12926.pdf

55. Department of Health, Western Australia. Guidelines for the partial exemption of involuntary mental health in-patients aged 18 years and over in certain circumstances from the application of certain aspects of the Smoke Free WA Health System Policy. Last update: Viewed Available from: Available at: http://www.health.wa.gov.au/smokefree/docs/Guidelines_partial_exemption_involuntary_mental_health_inpatients.pdf

56. SA Health Smoke-free Policy Directive (21 March 2013). Last update: Viewed Available from: https://www.sahealth.sa.gov.au/wps/wcm/connect/8bb5e980476d0323a392fb2e504170d4/Directive_Smoke+free+policy_Mar2013.pdf?MOD=AJPERES&CACHEID=8bb5e980476d0323a392fb2e504170d4

57. Tobacco Act 1987 (Vic), section 5A(2)(h). Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/

58. Victorian Government Gazette, G24, 18 June 2015, Notice of the Revocation of Declared Smoking Areas Under Section 5A(2)(h) of the Tobacco Act 1987. Page 1354., Available from: http://www.gazette.vic.gov.au/gazette/Gazettes2015/GG2015G024.pdf

59. Australian Institute of Health and Welfare. The Health of Australia's Prisoners 2015. Canberra: AIHW, 2015. Available from: http://www.aihw.gov.au/publication-detail/?id=60129553527

60. Carpenter MJ, Hughes JR, Solomon LJ, and Powell TA. Smoking in correctional facilities: a survey of employees. Tobacco Control, 2001; 10(1):38-42. Available from: http://tobaccocontrol.bmj.com/cgi/content/abstract/10/1/38

61. Proescholdbell SK, Foley KL, Johnson J, and Malek SH. Indoor air quality in prisons before and after implementation of a smoking ban law. Tobacco Control, 2008; 17(2):123–7. Available from: http://tobaccocontrol.bmj.com/cgi/content/abstract/17/2/123

62. Jayes LR, Ratschen E, Murray RL, Dymond-White S, and Britton J. Second-hand smoke in four English prisons: an air quality monitoring study. BMC Public Health, 2016; 16(1):119. Available from: http://www.ncbi.nlm.nih.gov/pubmed/26847640

63. Eldridge G and Cropsey K. Smoking bans and restrictions in US prisons and jails/Consequences for incarcerated women. American Journal of Preventive Medicine, 2009; 37(2):S179-80. Available from: https://www.ncbi.nlm.nih.gov/pubmed/19591759

64. Woodham R. Smoking in NSW Correctional facilities (letter), Barnsley K, Editor 2007: Sydney.

65. Davey M. Prisoners riot at Melbourne's Ravenhall remand centre over smoking ban The Guardian, 2015. Available from: http://www.theguardian.com/australia-news/2015/jun/30/prisoners-riot-at-melbournes-ravenhall-remand-centre-over-smoking-ban

66. Cowie T, Bucci N, and Spoone R. Metropolitan Remand Centre back under control after prison riot, full investigation promised. The Age 2015. Available from: http://www.theage.com.au/victoria/metropolitan-remand-centre-back-under-control-after-prison-riot-20150630-gi20jt

67. Kennedy SM, Davis SP, and Thorne SL. Smoke-Free Policies in U.S. Prisons and Jails: A Review of the Literature. Nicotine Tob Res, 2014. Available from: http://www.ncbi.nlm.nih.gov/pubmed/25475088

68. Mulholland H. How did a jail in Guernsey ban smoking with no unrest? . The Guardian, 2015. Available from: http://www.theguardian.com/society/2015/oct/07/guernsey-prison-ban-smoking-unrest

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72. Correctional Services Regulations (NT), see item 12 in schedule 1.

73. Tobacco Act 1987 (Vic), see section 5A(1). Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/  See also Corrections Regulations 2009 (Vic), regulation 49A.

74. Tasmania Prison Service. About the Tasmania Prison Service, available from: http://www.justice.tas.gov.au/prisonservice

75. Crimes (Administration of Sentences) Regulation 2014 (NSW), see section 322(2). . Available from: http://www.austlii.edu.au/au/legis/nsw/consol_reg/cosr2014439/

76. See Corrective Services Regulations 2006 (QLD), section 20 and schedule

77. Department of Correctional Services. Reduction in Smoking Policy and Action Plan 2015-2017. Available from: http://www.corrections.sa.gov.au/__files/f/3887/DCS%20Reduction%20in%20Smoking%20Policy%20and%20Action%20Plan%202015-17.pdf

78. Phillips Y. Prison smoking bans to start today. The West Australian, 2009; 30 June. Available from: http://au.news.yahoo.com/thewest/a/-/wa/5807455/prison-smoking-bans-to-start-today/

79. WA prison officers want full smoking ban. WA Today, 2015. Available from: http://www.watoday.com.au/wa-news/wa-prison-officers-want-full-smoking-ban-20150629-gi08y9.html

80. Mosley L ACT Government 'committed' to introducing smoking ban at Canberra's jail. ABC News, 2015. Available from: http://www.abc.net.au/news/2015-08-10/act-committed-to-introducing-smoking-ban-at-canberra-jail/6686420

81. Correctional Service Canada. Decision to implement a total smoking ban at all federal correctional facilities. Ottawa 2007. Last update: Viewed Available from: http://www.csc-scc.gc.ca/text/media/ntlrls/2007/07-06-27-eng.shtml

82. Canada (Attorney General) v Mercier, 2010, Federal Court of Appeal. Available from: http://www.canlii.org/en/ca/fca/doc/2010/2010fca167/2010fca167.html

83. American Non-smokers' Rights Foundation. 100% Smokefree and Tobacco-Free Correctional Facilities, 2017: Berkeley, California. Available from: http://www.no-smoke.org/pdf/100smokefreeprisons.pdf

84. The Smokefree (Exemptions and Vehicles) Regulations 2007 (UK), see regulation 5

85. UK Government Letter from Prisons Minister Andrew Selous to Robert Neill MP, Chairman of the Justice Select Committee regarding smoking in prisons. 2015. Available from: https://www.gov.uk/government/speeches/smoking-in-prisons

86. Smokefree Environment Act 2000 (NSW), sections 6 and 7. Available from: http://www.austlii.edu.au/au/legis/nsw/consol_act/sea2000247/

87. Environment Protection Regulation, 2005 (ACT). Available from: http://www.austlii.edu.au/au/legis/act/consol_reg/epr2005375/index.html

88. Tobacco Act 1987 (Vic), section 5A(2)(g)(ii). Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/

89. Tobacco and Other Smoking Products Act 1998 (QLD), section 26VW. Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/

90. Nursing home develops smoking policy after fatal fire. Associated Press, 2002; 27 February. Available from: http://www.tobacco.org/news/87080.html

91. AAP. South Australia nursing home ‘lax’ over burns death: coroner. The Australian, 2011; 18 March. Available from: http://www.theaustralian.com.au/news/nation/so/story-e6frg6nf-1226023956658

92. Nursing home fire kills one in Swansea. The Examiner, 2011; 2 February. Available from: http://www.examiner.com.au/news/local/news/business/nursing-home-fire-kills-one-in-swansea/2064408.aspx

93. Elderly man killed by fire at Myrtleford nursing home. The Border Mail,, 2016. Available from: http://www.bordermail.com.au/story/3874480/elderly-man-killed-by-fire/

94. Australian Government Department of Health and Ageing. Coroner's recommendations on the use of bedpoles and smoking practices at residential aged care homes, 8 June. Canberra: Australian Government Department of Health and Ageing, 2010. Last update: Viewed Available from: http://www.health.gov.au/internet/main/publishing.nsf/content/ageing-mailfax-2010-0806.htm

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