As we're often asked about smokers' rights, we've provided a Q&A to give you a comprehensive understanding of where exactly Australians can now legally light up.

Is it permitted to smoke in enclosed public areas?

No. For example, under the NSW Smoke-free Environment Act 2000 and NSW Smoke-free Environment Regulation 2016, smoking and the use of e-cigarettes is illegal in all enclosed public areas.

This includes shopping centres, dining areas, schools, business premises, community centres and public transport.

It's also illegal to smoke within four metres of the entrance to a public building.

Is smoking banned in outdoor public spaces?

As a measure to protect people from harmful second-hand smoke, smokers are prohibited from lighting up in certain outdoor spaces. For instance, it's illegal to smoke at sporting fields, beaches, public transport stops and within ten metres of a playground.

Furthermore, smoking has been banned in Sydney's Pitt Street Mall and Martin Place since 2016. In July 2019, North Sydney Council banned public smoking in its CBD. Currently, Melbourne City Council is considering extending its smoking ban in Bourke Street Mall to the entire CBD.

What are a smoker's rights at home?

Under NSW strata law, it's illegal to light up in your home or on your balcony if the smoke drifts into other residences. Smoking is also banned on common property unless specifically allowed by the body corporate.

If you're in a vehicle with a child, it's illegal to smoke or vape. Additionally, it's against the law to toss a cigarette butt out of the car window in case it starts a fire and also because it's classified as littering.

Are Australians entitled to a smoke break at work?

No. Legally, people don't have a right to take a smoke break at work, even outside the building. While it's up to employers to decide if they'll allow smoking during work time, they can also lawfully enforce a smoke-free workplace.

In fact, courts have ruled that workers can be sacked for breaking no-smoking rules. (See Mr Victor Bajada v Trend Windows and Doors Pty Limited [2018] FWC5937.)

If an employer were to allow smoke breaks, they would need to consider the impact on their non-smoking employees, who may not get as many breaks and would therefore be at a disadvantage.

Furthermore, there is the concern of outdoor passive smoking, which is harmful to other employees who are nearby.

Is it discrimination to ban people from smoking in certain locations?

No. Banning people from smoking is not recognised as a discriminatory act.

Anti-smoking laws are based on public health concerns to protect the majority of people who do not smoke from the harmful effects of passive smoking.

What are the current smoking statistics in Australia?

The Bureau of Statistics says tobacco is the largest preventable cause of death and disease in Australia. It is responsible for killing 19,000 Australians a year and nine per cent of deaths resulting from a related disease.

Numbers of daily smokers have halved to 12.8 per cent over the last 20 years, with some switching to vaping as an alternative. (See National Health Survey, Australian Bureau of Statistics, December 2018.)

Is it legal to vape in smoke-free spaces?

No. Vaping or the use of e-cigarettes is banned in smoke-free zones.

While many smokers had hoped that vaping was safer than smoking cigarettes, this is now in dispute, with NSW Health warning that vaping contains chemicals that could be harmful. (See Tobacco and smoking control in NSW - E-cigarettes, NSW Health, July 2019.)

What is the penalty for a breach of smoking laws?

Break a smoking ban and you'll face an on-the-spot fine of $300 in New South Wales.

If you have further questions about smokers' rights, we recommend you visit the Tobacco and smoking control page on the website of NSW Health, or seek specialist legal advice.

Emily Wittig
Employment law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.