Smoking Laws

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GUEST OBSERVER
People living in apartments are much more likely to experience secondhand smoke wafting into their homes and across shared areas. It’s an issue that can divide neighbours and leave strata managers overwhelmed.
Apartment residents need sensible smoking regulations that balance personal freedoms in the home and public health interests. Our newly published research paper, Sharing the Air, shows the law is letting them down.
Sharing the air
Residents are right to be concerned. For three decades we’ve known that secondhand smoke increases the risks of lung cancer and heart disease in adults; asthma and breathing problems in children; and SIDS in babies.
In higher-density housing, tobacco smoke is notoriously difficult to contain – and there is no known safe level of exposure.
Despite the harms of secondhand smoke, only New South Wales tackles the issue of smoking in its strata law. In all other Australian jurisdictions, residents and owners are left confused about their rights and responsibilities.
Neighbours at war
In many cases, people in strata-titled properties who are affected by smoke have to prove it is a legal nuisance or hazard before any action can be taken.
However, case law from courts and tribunals reveals an awkward tension between the legal concept of “nuisance” and the science on the harms of secondhand smoke.
In one Queensland case, a man wanted to stop smoke infiltrating his bedroom from his neighbour’s balcony as this made him unwell.
Although the tribunal accepted that smoke often entered his bedroom, he was found to have an “abnormal sensitivity”. Nuisance could only be established if the smoke was of such volume or frequency that it was an unreasonable interference. And this was to be determined objectively through the prism of an ordinary, healthy person.
But what is a reasonable standard of exposure to secondhand smoke when no safe level has been established?
Smoking restrictions
These neighbour disputes are more easily resolved if the apartment complex has a smoking bylaw that can be enforced.
Apartment residents share spaces and infrastructure, and so bylaws are used to balance the rights of all residents. Contentious issues such as pets, display of laundry, car parking, floor coverings and rubbish disposal are covered.
Although it is usually possible and lawful for the owners’ corporation to add a smoking bylaw, there are three main barriers:
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awareness is low
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the procedure is complex and time-consuming
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legal advice may be needed to draft a smoking bylaw that is valid and enforceable.
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Strata laws in all Australian jurisdictions empower owners’ corporations to make bylaws for the good management of the scheme, but these powers vary in scope.
Working out whether the owners’ corporation has power to make a particular smoking bylaw is not a straightforward task. In all jurisdictions, it has power to “control” common property, but there is only a power to “control” private lots in NSW, Victoria, Western Australia and the Northern Territory.
There are other statutory limitations on powers to make bylaws. Although these differ between jurisdictions, the main principles are that bylaws must not be inconsistent with strata law and other laws; unreasonable or oppressive; or discriminatory. These are all potentially relevant to smoking bylaws.
On the issue of consistency, there is a question whether a smoking bylaw might be inconsistent with state laws on smoke-free areas. These prohibit smoking in public places and workplaces, but may specifically exempt residential premises.
As for reasonableness and oppressiveness, a blanket ban on smoking is probably more vulnerable to challenge on this ground because it could prevent a resident from smoking even where neighbours will not realistically be affected.
Smokers are not a protected class under anti-discrimination legislation. While they are not prevented from living in an apartment complex with a smoking bylaw, they must comply with the bylaws.
A better way?
A model or default bylaw on smoking can be included in strata legislation or regulations to provide clear guidance. Existing owners’ corporations can choose to adopt the smoking bylaw by special resolution, confident that it is valid and enforceable. Many new developments would adopt the smoking bylaw from the start.
Through more direct and immediate enforcement, disputes about smoking can be resolved more quickly.
In NSW, for example, a model smoking bylaw presents two options:
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The first prohibits smoking on common property and requires smokers (and their guests) to ensure that smoke does not penetrate to common property or other lots.
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The second is the same, except it permits smoking on common property if authorised or within a designated area.
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The NSW example only prohibits smoking in a private lot if smoke is infiltrating other lots, and therefore affecting neighbours. In this way, it appears to strike an acceptable balance between the need to minimise apartment residents’ exposure to secondhand smoke while respecting personal freedoms in private property.
<img src="https://counter.theconversation.com/content/84261/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1">Strata law reform is under way across Australia. In the interests of all apartment residents, smoking can no longer be ignored.
Caitlin Kameron, Adjunct Research Associate, School of Psychology and Speech Pathology, Curtin University
This article was originally published on <a href="http://theconversation.com" target="_blank">The Conversation</a>. Read the <a href="https://theconversation.com/apartment-residents-need-better-protection-from-secondhand-smoke-84261" target="_blank">original article</a>.
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Apartment residents need better protection from secondhand smoke: Caitlin Kameron

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GUEST OBSERVER
Changes to smoking rules in parts of the country set the stage for 'smoke free by-laws' in strata properties.
The stage is set for new smoking laws in Victoria, as New South Wales and Queensland progress reforms on controlling if and where apartment owners can smoke.
Owners corporations in Victoria are encouraged to get feedback from their owners on what their position is.
As part of a raft of changes to New South Wales strata legislation in late 2016, for the first time smoking was included as a potential nuisance or hazard to apartment residents. Owners corporations there can now create by-laws to make their buildings smoke-free.
Queensland, which is currently reviewing its strata legislation, has also proposed laws to allow smoking to be banned in apartment buildings.
Should Victoria be looking to emulate these reforms?
Residents of apartments are more vulnerable to second-hand smoke because the smoke can easily drift between areas of a building. Furthermore reverse cycle air conditioners, common to many apartment buildings are often taking the second hand smoke from one individual and circulating it to other members of the Owners Corporation.
Some strata schemes have been crying out for the chance to regulate smoking in their buildings.
The aim of these by-laws is not to stigmatise people who smoke but restrict where people can smoke or restrict smoking completely to create a cleaner and healthier living environment for all residents of a scheme.
The most obvious benefits of smoke-free apartment buildings is the health benefits from decreased exposure to second-hand smoke.
Second-hand tobacco smoke causes cancer and any level of exposure is potentially unsafe. Children exposed to second-hand smoke are at an increased risk of a range of conditions.
Adults who have been exposed to second-hand smoke experience immediate adverse effects on their cardiovascular system and in the long term can develop coronary heart disease and lung cancer.
Benefits to smoke-free apartment buildings is not limited to just the health aspect but can also create financial benefits to owners.
Tobacco smoke leaves residue on walls and curtains and smoke-free apartments have been shown to have cheaper cleaning costs.
Smoke-free buildings also carry a reduced risk of fire and other damage such as burn marks on carpets, furniture and counters thereby reducing repair or replacement costs.
Current laws in Victoria only allow for smoking to be prohibited on common property.
Owners Corporations under the 2006 Act are able to pass a rule as a special resolution at an AGM, prohibiting smoking in designated common property areas but cannot prohibit a resident from smoking in their lot.
So how do the NSW laws work?
In NSW an owners’ corporation can create smoke-free by-laws or make changes to existing ones. New by-laws require a special resolution at a general meeting of the owners’ corporation. For the by-law to be introduced 75 percent must vote in favour of the resolution.
Once a by-law is in place and communicated to all residents in the building a breach can result in a penalty notice being issued by the owners’ corporation. The offending owner or resident may be ordered to pay a monetary penalty.
Ultimately it is about giving strata communities a choice.
The updated legislation that allowed these by-laws to be brought in are not anti-smoking per se, but they do give strata communities that do not want smoking in their buildings a great deal more power enforce restrictions. Ultimately it’s up to each community to individually decide how their scheme is managed.
Victorian decision makers should be closely watching their New South Wales and Queensland counterparts to see how the smoking model rule is received by owners.
 
Stephen Raff is the CEO of Ace Body Corporate Management and can be contacted <a href="https://www.acebodycorp.com.au" target="_blank">here.</a>
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Are Victorian apartment blocks the new no smoking areas? Stephen Raff 

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GUEST OBSERVER
In NSW strata committees have the authority to ban smoking by introducing a smoke-free by-law.
Introducing a smoke-free by-law is the most effective way to eliminate the health, legal and financial risks associated with smoking in apartment complexes. 
To help strata committees advocate for a smoke-free by-law, and to provide guidance on the development and implementation of a smoke-free by-law Cancer Council has developed the Achieving Smoke-free Apartments toolkit. The toolkit summarises the health, financial and legal benefits of smoke-free apartment complexes, the steps that can be taken to achieve smoke-free living, and examples of what to include in a smoke-free by-law. 
Download the full kit <a href="https://www.cancercouncil.com.au/wp-content/uploads/2014/07/Complete-kit.pdf" target="_blank">here</a>.
For more information, reach the Cancer Council <a href="https://www.cancercouncil.com.au" target="_blank">here</a>.
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