In a prior judgment, the Commission found that Hilton Hotels of Australia had discriminated against Sue Meeuwissen and Neil Francey under section 103(1)(b)(i) of the Disability Discrimination Act by permitting smoking in their premises (a nightclub), causing the complainants difficulty breathing in such an environment. Ms Meeuwissen had cystic fibrosis - her doctor had recommended that she live in a smoke-free environment. In the earlier judgment, the Commission had ordered that the respondent pay the complainants damages, but had requested written submissions on possible declarations that it could make for preventing further discrimination under section 103(1)(b). (See: Francey v Hilton Hotels of Australia Pty Ltd [1997] HREOCA 56.)
The Commission concluded that all but one of the options available to it were not viable (separation of smokers and non-smokers; separate smoking and non-smoking environments within the venue; and the use of ventilation-filtration systems). Only a complete ban on smoking in entertainment venues would prevent further discrimination towards disabled non-smokers. However, the Commission declined to make such a declaration on the basis that momentum was building to ban smoking in public entertainment venues, and it was inappropriate to single out this venue for an earlier ban.
Meeuwissen v Hilton Hotels of Australia, Nos. H97/50 & H97/51, Human Rights and Equal Opportunity Commission (2000).
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A claim against an employer involving a person who is harmed by secondhand smoke exposure in the workplace. For example, an employee with asthma may sue their employer for failing to protect them from exposure to secondhand smoke in the office or an employee with cancer may sue for workers’ compensation benefits. This may also include claims for workers' compensation. Disability laws also may protect customers who are not able to patronize a business filled with smoky air because of their disability.
Type of Tobacco Product
None
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"4.4.4 Prohibition of Smoking at the Venue: As indicated earlier, this was the option most
favoured by submissions in support of the complainant. It has the merit of simplicity. Many submissions
also argued that it would be of benefit to both patrons and staff of the nightclub as a whole, but this is not a
matter for my consideration. It was argued in some submissions that a compromise could be to have certain
non-smoking nights. But this is not viable for a number of reasons. It would be impossible for the
respondent to determine on which nights non-smokers would be more likely to attend and smokers less.
Whichever nights were chosen some people, on both sides of the issue, would be dissatisfied.
Further, from the complainant's own submissions, the residual environmental tobacco smoke in furniture,
curtains and carpets would require thorough cleaning to remove it. It would not be viable for the respondent
to do this one or several times a week. The respondents again argued that to make the venue a non-smoking
venue would make it non-viable as a business proposition. I am not so persuaded by this argument, as the
evidence for the contention appears to be much more tenuous, and based on assumption and "gut-feeling".
Evidence was brought by both sides on the viability and non-viability of smoke-free venues, but it was
inconclusive. The question of the venue’s ongoing viability is not, in itself, persuasive. Whilst this decision
does not relate to the general community debate over the efficacy of environmental tobacco smoke I cannot
make the decision in a vacuum. Many public entertainment venues (although not nightclubs) are already
smokefree. Several State governments have legislated to ban smoking in restaurants, hotels, clubs etc. In
NSW, where the respondents venue is situated, legislation was passed by Parliament in 1997 which
provides that smoking will not be allowed in public entertainment venues which do not comply with clean
air standards five years after these standards have been introduced. However, no such standards have been
promulgated. It is clear that momentum is building to ban smoking in public entertainment venues. In this context it
seems to me inappropriate to single this venue out for an earlier ban because a complaint has been
successfully brought under the Disability Discrimination Act. For this reason, I am not prepared to support
this option."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In a prior judgment, the Commission found that Hilton Hotels of Australia had discriminated against Sue Meeuwissen and Neil Francey under section 103(1)(b)(i) of the Disability Discrimination Act by permitting smoking in their premises (a nightclub), causing the complainants difficulty breathing in such an environment. Ms Meeuwissen had cystic fibrosis - her doctor had recommended that she live in a smoke-free environment. In the earlier judgment, the Commission had ordered that the respondent pay the complainants damages, but had requested written submissions on possible declarations that it could make for preventing further discrimination under section 103(1)(b). (See: Francey v Hilton Hotels of Australia Pty Ltd [1997] HREOCA 56.)
The Commission concluded that all but one of the options available to it were not viable (separation of smokers and non-smokers; separate smoking and non-smoking environments within the venue; and the use of ventilation-filtration systems). Only a complete ban on smoking in entertainment venues would prevent further discrimination towards disabled non-smokers. However, the Commission declined to make such a declaration on the basis that momentum was building to ban smoking in public entertainment venues, and it was inappropriate to single out this venue for an earlier ban.