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Smoking: Law & policy for NSW youth services

by Nick Manning

Smoking is a serious health issue for young people. A quick reminder, from Tobacco and the young (see More information below):

  • "For the young, the health effects of active smoking are significant - addiction to nicotine can occur over days rather than months; and the earlier the uptake, the greater the risk of developing lung cancer."

  • Passive smoking (breathing other people's smoke) also causes diseases. "For adults, these include lung cancer, cardio-vascular disease and a range of respiratory symptoms. Health effects for children include asthma, pneumonia, bronchiolitis, croup, glue ear and the sudden infant death syndrome."

  • People die from passive smoking - "the number of annual Australian deaths resulting from passive smoking - 224 deaths including 103 children."

This fact sheet aims to assist youth services in NSW to develop appropriate policies and procedures around tobacco and smoking. (SAAP services and out-of-home care services should also refer to the standards and guidelines specific to their service type).

 

Can under 18s smoke?

A person aged under 18 who:

  • buys
  • possesses
  • smokes

tobacco (eg. cigarettes) is not committing an offence in NSW.

Any person who:

  • sells tobacco to an under 18 year old
  • buys tobacco on behalf of an under 18 year old

is committing an offence.

The law aims to restrict under 18s' access to tobacco by putting responsibility on the adults involved in supplying under 18s with tobacco. The law does not go as far as criminalising under-age smoking itself. It is worth noting that the Cancer Council NSW does not support changing the law to make it an offence for under 18s to buy, possess or use tobacco.

Police can seize tobacco from someone in a public place if the police suspect the person is under 18. However the under 18 year old is not guilty of any offence and there is no fine or penalty. (Public Health Act 1991)

Youth workers and community members are sometimes confused about these laws, partly because the law has changed several times in recent years. One confusion is about the minimum age for sale of tobacco, which was 16, but is now 18.

Can under 18s smoke in youth services?

There are no laws requiring youth services to:

  • stop under 18s from smoking outside
  • tell parents that under 18s are smoking
  • get parents' consent for under 18s to smoke
  • report under 18s who smoke.

Your agency can decide whether to allow people to have tobacco with them on your premises. However:

  • it is probably not fair or realistic to ban young people (especially over 18s) from merely possessing tobacco in most of your activities

  • an employer probably does not have the right to ban employees from merely possessing tobacco while at work.

You cannot confiscate tobacco from an under 18 year old or an over 18 year old, unless they willingly let you. This might occur eg. if "no tobacco" is a condition of entry of your event, or a rule at your excursion or camp.

However, regardless of rules and agreements, if a young person refuses to hand over their tobacco, all you can do is refuse entry, ask them to leave, or apply any other appropriate consequences. You cannot forcibly seize their tobacco.

If you do take their tobacco, you can give it back later. However this may cause some people to criticise the agency for apparently encouraging young people to smoke. It is better (especially with under 18s) to avoid having to take their tobacco in the first place.

What about duty of care?

Your duty of care is a fairly narrow legal duty, not the broad professional duty that many youth workers imagine it to be. The mere fact that you are aware of a young person smoking and don't take steps to prevent it, would not be a breach of your duty of care. Your duty of care around smoking is mainly to prevent passive smoking in enclosed places.

Relevant youth work programs (eg. those with a health or life skills aim) probably have a professional responsibility (as opposed to a legal duty) to educate young people about the dangers of active and passive smoking.

 

Can you give a young person a cigarette?

A person who buys tobacco on behalf of an under 18 year old is committing an offence. So a youth worker must not:

  • buy a pack of cigarettes for an under 18 year old (regardless of who pays), or
  • sell a pack of cigarettes to an under 18 year old.

Can you give an under 18 year old one of your own cigarettes? Legally this is a grey area. It is unclear legally whether giving a cigarette or two might or might not make you "a person who purchases, on behalf of a person under the age of 18 years, a tobacco product" (Public Health Act 1991).

The other legal issue is your duty of care, and this is relevant to giving tobacco to under 18s and over 18s. Possibly a young person could try to sue you for breach of duty of care for providing them with cigarettes. They would probably have to prove that the cigarettes you gave them contributed significantly to their addiction, cancer or other disease - perhaps if you gave them their first ever cigarette, or if you gave them cigarettes while they were trying to quit. There are legal reasons why such court action against you may have difficulty succeeding.

A case like this may be more likely to succeed where you gave cigarettes to a younger child (eg. of primary school age) or a person (child or adult of any age) with an intellectual disability who doesn't understand that smoking is harmful. Note that if a person succeeded in suing you for giving them cigarettes, it is possible that any negligence finding would be against you personally, as your employer might claim that you were acting outside of your policies and job role.

Because of the uncertainty and limitations of the law in such situations, youth workers should be guided by employer policies and professional judgements. While most youth workers say that giving cigarettes to young people is generally unethical and unprofessional, some workers argue that there can be some limited exceptions (see YAPA ethics debate at http://youthworkethics.blogspot.com).

 

Passive smoking and the law

Youth services are workplaces. The Occupational Health and Safety Act 2000 requires employers to ensure the health, safety and welfare of all people in the workplace. And employees must take reasonable care for the health and safety of others. Fines and criminal penalties apply for breaches of the Act.

When it comes to smoking, this means no environmental tobacco smoke (ETS) in enclosed places. According to When smoke gets in your eyes (see More information):

"Enforcement action under the Occupational Health and Safety Act in relation to passive smoking is now commonplace. It usually follows a formal complaint to the WorkCover Authority, and invariably involves the serving of improvement and prohibition notices calling upon the employing organisation to remove ETS from enclosed areas of its workplace."

What if we all want to smoke?

Even if all the people in a room or vehicle want to smoke, or don't mind if others smoke, it is still a breach of occupational health and safety laws.

The Smoke-free Environment Act 2000 introduced a ban on smoking in most enclosed public places. "Enclosed" means "having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily." Note that public places not only includes places such as community centres, but also vehicles carrying members of the public.

Accommodation services

You must eliminate smoking in the common areas (corridors, lounge rooms, kitchens etc) and in offices inside all residential services.

If your residents are boarders and lodgers (without the rights of tenants), you must ban smoking in bedrooms too, as part of your duty to ensure that employees and residents are not exposed to passive smoke.

If your residents are tenants under the Residential Tenancies Act, you have to allow the tenant to have "quiet enjoyment" of the rented premises. This may mean you cannot ban smoking inside a resident's own leased space (eg. bedroom or flat). (If this is the case, it would probably be the case for under 18s as well, as smoking is not illegal for under 18s). However, employers must still put in place whatever alternative procedures will ensure that employees are not exposed to passive smoke in a resident's room.

Verandahs and other semi-enclosed spaces

"Passive smoking will occur where people smoke indoors. It may also occur in partly enclosed areas such as verandahs, terraces, shopping malls, sports stadiums and beer gardens. These areas must be assessed as to whether there is sufficient natural ventilation for them to be considered outdoors. For specialist advice contact WorkCover NSW." (Passive smoking policy and control, see More information below).

Note also that smoke from outside must not contaminate indoor areas.

Smoking outside

There are no laws restricting smoking outside. No laws require youth services to stop people from smoking outside.

The occupier of the property can ban smoking on their premises, eg. courtyards, front steps, out the back etc. Some government departments and local councils have such bans applying to some or all of their properties. Check with your agency or landlord.

In late 2003, several NSW local councils initiated their own bans on smoking within a short distance of childcare facilities, playgrounds and sports fields. Simon Chapman, Professor of Public Health at Sydney University, and a strong anti-smoking advocate, said on ABC Radio (15/9/03) that there is no evidence of health effects from passive smoking outdoors. He opposed bans on smoking in playgrounds and sports fields for this reason and because such bans may reduce support for other tobacco and smoking regulations. On the other hand, the Cancer Council NSW (also a strong anti-smoking advocate) supported such bans as indicating a change in attitudes towards tobacco use (Sydney Morning Herald 11/11/03).

Should youth services ban smoking outside?

At many youth services, young people smoke somewhere outside the building, sometimes in a designated area. Parents and community members may question why the youth service does not stop smoking at the service, or at least stop under 18s smoking. On the other hand, youth services who work with marginalised young people may be concerned that a smoking ban may lead some young people to stop attending completely, and so miss out on important services. Youth services who work with both under 18s and over 18s may find it difficult to have one rule for some young people and another rule for others. And a smoking ban may simply cause the smokers to smoke on the footpath.

Youth services need to devise their own policy so as to best meet all the needs of their target group. One approach is to designate an outside smoking area which is not visible to people coming and going, and which is not an attractive place to hang out. In this way smokers can still smoke but other young people are not encouraged to hang out with the smokers. Note that some verandahs and balconies may not be legal smoking areas - see Verandahs and other semi-enclosed spaces above.

 

Can youth workers smoke at work?

The occupier of the property can ban smoking on their premises. Employers can also generally ban workers from smoking anywhere in work time.

However it is unlikely that an employer could ban workers from smoking off the premises during their breaks, or ban workers from smoking at all during an excursion or camp - this would probably be too great an intrusion into the lives of employees.

It is unclear whether an employer could ban workers from smoking with young people off the premises during breaks. If they wish, an employer could provide a place outside for workers to smoke away from young people.

It is unlikely that an employer can legally hire non-smokers only, as this might breach disability discrimination laws. (In at least one case addiction has been found to be a disability and therefore protected by anti-discrimination law).

Employers and employees concerned about these questions should get specific legal advice. Union members should talk to their union.

The mere fact that young people find out that a youth worker smokes, or see the worker smoking outside, is not any sort of breach of duty of care. There isn't consensus among youth workers about the importance or otherwise of youth workers not smoking because they are role models to young people.

 

Youth service smoking policies

Each youth program must decide its own approach to under-age and adult smoking. The questions to answer include:

  • Smoking (outside) during your programs? You can set the rules - for under 18s and over 18s.

  • Smoking (outside) on your premises? Whoever owns or occupies the land can set the rules. If your premises are government- or council-owned, check if they already have restrictions in place.

  • Restrict under-age smoking only? Under 18 smoking is legal, but there are good health reasons for discouraging younger people from smoking.

  • Accommodation services: Do your residents have the rights of tenants under the Residential Tenancies Act? If so, how will you protect workers and other tenants from passive smoking in the bedrooms or flats?

Ask yourselves:

  • Would restrictions on smoking in your programs be enforceable?
  • Would they have a significant impact on young people's consumption of tobacco generally?
  • Would they influence whether some young people take up smoking?
  • Would they assist some young people to quit?
  • What effect would different rules for different ages have in your service?

Keep in mind how your policy (and how you explain it) may influence perceptions:

  • how young people perceive the youth service
  • how parents, other agencies, politicians, local media etc perceive you.

Smoking can be a very emotive issue on all sides of the debate, so don't underestimate the importance of these perceptions.

See the YAPA Model Policy: Smoking (under More Information below).

 

More information

YAPA resources

Model policies for non-residential youth services in NSW: YAPA has a range of relevant model policies, available to download and copy at www.yapa.org.au/youthwork/modelpolicies, including: Alcohol and illegal drugs; Smoking; Privacy; Rules and consequences; Non-violence; Crime and police; Duty of care statement; Excursions and camps.

YAPA youthwork fact sheets are at www.yapa.org.au/youthwork/facts.php including:

Other resources

  • Drug offences by The Shopfront Youth Legal Service www.theshopfront.org . Click on "Inform and train youth workers about legal issues" then "Common offences: drugs".

  • Tobacco and the young by Greg Soulos, The Cancer Council. In YAPRap (August 2003) - www.yapa.org.au/youth/facts/tobacco.pdf

  • When smoke gets in your eyes... nose, throat, lungs and bloodstream: A guide to passive smoking and the law in NSW (2001), Cancer Council NSW

  • Passive smoking policy and control (2000), WorkCover & Cancer Council NSW.

  • Acts of Parliament, at www.legislation.nsw.gov.au: Smoke-free Environment Act 2000, Occupational Health and Safety Act 2000, Public Health Act 1991, Residential Tenancies Act.

  • The Cancer Council NSW 13 11 20

Limitations of this information

Published: 2003. Applicable to:

  • NSW only
  • youth workers in non-government agencies and local councils providing accommodation, welfare, social or recreation services
  • SAAP accommodation services should also refer to standards and guidelines specific to SAAP
  • may not be consistent with laws and guidelines in out-of-home care or health services
  • young people: except where the text says otherwise, young person/people means people aged roughly 12-25 years old.

To the best of our knowledge this is an accurate summary of the relevant facts at the time of publishing, without the assumption of a duty of care. The authors have no health, occupational health and safety, or legal qualifications. The information here is general and should not be relied on as a substitute for legal or other professional advice. You should refer to any publications and authorities listed above and if necessary get qualified advice for your specific situation.


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