Dealing with smoke infiltration in your home
Contents
1.
Introduction .............................................................................................................................................. 2
2.
Summary ................................................................................................................................................... 3
3.
The health hazards of secondhand smoke ................................................................................................ 4
4.
How smoke infiltration occurs................................................................................................................... 5
5.
Benefits of going smokefree in multi-unit housing ................................................................................... 5
6.
Relevance of smokefree laws to homes .................................................................................................... 7
7.
Gathering evidence of smoke infiltration .................................................................................................. 8
8.
Owners corporation rules.......................................................................................................................... 9
9
Rights and obligations of landlords and tenants under the RTA ............................................................. 16
10
Rights and obligations of rooming house operators and residents under the RTA ................................. 18
11
Nuisance – complaints to the local council.............................................................................................. 21
12
Equal Opportunity law complaints .......................................................................................................... 24
References ....................................................................................................................................................... 27
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
1.
Introduction
Many people in Victoria have the unpleasant and potentially harmful experience of having
secondhand smoke infiltrate their homes as a result of smoking in neighbouring houses and
apartments.
We know this because we frequently receive phone calls from people telling us about their
experiences of smoke infiltration and asking for information on what they can do about it.
This information sheet is aimed at helping people to explore their best options for trying to
deal with secondhand smoke infiltrating their homes.
Smoke infiltration in the home is a concern because secondhand smoke exposure is a known
health hazard with no safe level of exposure. It is also very unpleasant to have your home
smell of tobacco smoke. Even people who smoke often report that they don’t smoke inside
the home.
People living in multi-unit housing arrangements – like privately owned apartments, public
and social housing, aged care, retirement and mental health settings – share spaces,
infrastructure and air. In shared living arrangements there are often rules on things like pet
ownership, noise, garbage disposal and the drying of laundry items that are designed to
balance everyone’s interests and encourage harmonious living. Unfortunately, there is
sometimes a lack of rules around smoking – despite the fact that secondhand smoke is both
a health hazard and very unpleasant. This means that people often need to look to other
avenues to try deal with smoke infiltrating their home.
The information we provide is specific to Victoria and might not outline all the potential
options available for dealing with smoke infiltration in the home. Cancer Council
organisations in other states and territories may be able to provide information specific to
their jurisdictions.
The current laws around smoke infiltration in Victoria are complex. While there are a
number of potential avenues for trying to address smoke infiltration in the home, it appears
these avenues are not often used for this purpose. This guide has therefore been put
together to help explain how various avenues of complaint may be used to deal with smoke
infiltration.
Quit Victoria understands that the avenues currently available to non-smoking Victorians
seeking to prevent smoke infiltration are limited. We are therefore currently advocating for
law reform in this area, to make it easier for Victorians to address the problem in future.
Further information regarding Quit Victoria’s position on the current state of the law
applying to multi-unit housing, and recommended options for reform in this area can be
found at: wiki.cancer.org.au/policy/Position_statement__Addressing_amoke_infiltration_in_multi-unit_housing
2
2.
Summary
This information sheet summarises potential options for dealing with smoke infiltration in
the home. These options include:

Owners corporation rules – for example, on health hazards or interference with use or
enjoyment of apartments and common areas. Some owners corporations may also have
rules specific to smoking.

The Residential Tenancies Act 1997 (Vic) – which gives tenants and rooming house
residents the right to “quiet enjoyment”. Where a renter experiencing smoke infiltration
has the same landlord as the person causing the smoke drift, they can request their
landlord to take all “reasonable steps” to prevent smoke infiltration for the purpose of
ensuring they have “quiet enjoyment” of their apartment.

Rooming house rules on health hazards or smoking (if such exist).

Complaints to local councils about ‘nuisances’ (which includes health hazards and other
things that negatively impact personal comfort).

Raising discrimination issues under equal opportunity laws where a person is particularly
susceptible to the harms of secondhand smoke exposure (e.g. young people, pregnant
women and people experiencing respiratory illness).
One or more of these options might apply to your circumstances and you will need to
decide which option is best in your circumstances. In every case, if you have any concerns
about negotiating with your landlord or owners corporation, you should seek legal advice.
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
3
3.
The health hazards of secondhand smoke
Quit Victoria has a detailed fact sheet on secondhand smoke, available from:
http://www.quit.org.au/resource-centre/facts-evidence/fact-sheets/cigarettes-and-tobacco
Secondhand smoke, also known as environmental tobacco smoke, is made up of smoke
released from the end of a burning cigarette (sidestream smoke) and smoke exhaled by the
smoker (mainstream smoke). There are at least 250 chemicals in secondhand smoke that
are known to be toxic and over 50 known to be carcinogenic.(1)
There is no safe level of exposure to secondhand smoke.(1) Adult exposure to secondhand
smoke has immediate adverse effects on the cardiovascular system and also causes
coronary heart disease and lung cancer. Children exposed to secondhand smoke are at an
increased risk of sudden infant death syndrome (SIDS), respiratory infections, ear problems,
and higher rates of or more severe asthma.(1) Secondhand smoke is associated with a
range of other adverse health effects including chronic obstructive pulmonary disease
(COPD), low birth weight , and childhood cancers such as leukaemia, brain cancer and
lymphomas.(1) Compared with adults, children are particularly susceptible to the effects of
secondhand smoke due to their higher breathing rates per body weight, their greater lung
surface area relative to adults, and the comparative immaturity of their lungs.(2)
Non-smokers with long term exposure to tobacco smoke have an estimated 20% to 30%
higher risk of developing lung cancer than non-smokers who aren’t exposed.(3) The
majority of deaths from secondhand smoke are from heart disease.(4) (5) People with other
conditions such as diabetes, high blood pressure, and vascular disease are at even greater
risk from secondhand smoke exposure.(6)
Any written correspondence regarding an experience of smoke infiltration in the home
should emphasise that, in addition to the noticeable impacts that smoke infiltration is
having, that there is no safe level of exposure to secondhand smoke. We provide some
example wording below:
The World Health Organization explains that “scientific evidence has firmly established
that there is no safe level of exposure to secondhand tobacco smoke” and that there is a
solid body of evidence that secondhand smoke causes “serious and fatal diseases in
adults and children”. The US Surgeon General has stated that “secondhand smoke is not
a mere annoyance. It is a serious health hazard that can lead to disease and premature
death in children and nonsmoking adults."(7) The evidence is clear that that there is no
risk-free level of exposure to secondhand smoke, and even brief periods of exposure can
cause immediate harm.(7)
4
4.
How smoke infiltration occurs
Smoke infiltration occurs where secondhand smoke enters the home from an external area.
A common example is where a neighbour is smoking on their own property and the
secondhand smoke enters your home.
In multi-unit housing in particular, common smoke infiltration entry points can include
windows, elevator shafts, shared hallways, holes in walls, pipes and electric outlets, as well
as shared air spaces and ventilation systems if cigarettes are smoked outside or in
neighbouring residences.(8) Smoke infiltration can also be distributed though heating and
air conditioning systems.(3) The extent of smoke infiltration can be dependent on factors
such as distance, ventilation,(9) temperature, wind and buoyancy between indoor and
outdoor air.(10)
Research demonstrates that involuntary secondhand smoke exposure can be reduced, but
not eliminated, through modifications to existing units.(11) Since many factors can impact
the level of smoke infiltration between individual units in shared living arrangements,
smokefree policies are the most effective way to ensure that residents are not exposed.(9)
5.
Benefits of going smokefree in multi-unit housing
Research suggests that smokefree policies in multi-unit housing provide a number of
benefits. Health, financial and other benefits of going smokefree include the following:

Avoiding harmful secondhand smoke exposure:
o There is evidence that smoke infiltration in buildings places people at risk of the
health impacts of secondhand smoke.(9) Secondhand smoke from outdoor and
partial outdoor areas may infiltrate adjacent indoor areas and affect indoor air
quality in otherwise smokefree areas.(12)
o The implementation of smokefree policies in multi-unit housing may encourage
reductions in cigarette consumption and lead to reduced secondhand smoke
exposure of residents.(13)

Avoiding exposure to harmful third hand smoke (THS):
o The tobacco-specific lung carcinogen ‘NNK’ is present on surfaces in most homes
occupied by smokers.(14) Available evidence on THS pollution of indoor
environments shows that THS is ubiquitous and pervasive wherever tobacco has
been smoked.(15)
o There is evidence of THS accumulating in smokers’ homes and persisting when
smokers move out, even after homes remain vacant for two months and are
cleaned and prepared for new residents.(16)
5

Economic benefits and improved amenity:
o Smokefree policies can reduce cleaning costs when properties are vacated. For
example, a US report found that the mean/average smoking-related cost for
cleaning an apartment inhabited by smokers was US$4,935 per unit and
complete smokefree policies lowered the likelihood of incurring smoking-related
costs. It was estimated that implementing statewide complete smokefree
policies in California may save multi-unit housing property owners
US$18,094,254 annually.(17)
o Apartments occupied by smokers may take more time to sell or lease compared
to apartments free from smoke odour. For example, with the presence of
tobacco odour proving difficult to mask, anecdotal accounts from real estate
agents in New York reveal that it can be incredibly difficult to deal with tobacco
odour and properties occupied by smokers can take far longer to sell or
lease.(18) US research found that property owners are more likely to think that a
smokefree policy would increase the re-sale value of their unit than decrease
it.(19)

Reduced risk of cigarette caused fires:
o Smoking is the leading cause of residential and total fire deaths in at least eight
countries, including Australia. Nearly a quarter of fire deaths in Australia in
2004–2005 occurred in fires started by cigarettes or matches. The total
economic impact of these fires is conservatively estimated at $63 million each
year.(5)

Responding to the needs of tenants:
o Smokefree laws are strongly supported by the public. In Victoria, the vast
majority of people do not smoke and many smokers report making efforts to
reduce others’ exposure to secondhand smoke by restricting smoking in the
home and around children.(20, 21)
6
6.
Relevance of smokefree laws to homes
Smokefree policies and regulations for indoor workplaces and public areas are widespread
in Australia; however, there are few restrictions on smoking in homes and personal living
arrangements. Laws and policies differ depending on the type of housing. For example:
o Private rental: homes, including those that are privately rented, are exempted from
smokefree requirements under the Tobacco Act 1987 (Vic) (‘Tobacco Act’), including
common areas of apartment blocks. Smokefree requirements only apply if a business is
also operating from a home, in which case it must be smokefree while staff, clients or
other non-residents are present. However, for apartment blocks, owners corporations
rules prohibit activities that are hazardous to health and that prevent lawful enjoyment
of common property (see part 8). Smoke infiltration should fall within these categories,
although there are currently no reported Victorian court or tribunal decisions
considering the issue of smoke infiltration under owners corporations rules.
o Accommodation involving staff/volunteers: All enclosed workplaces are required under
the Tobacco Act to be smokefree. Many people live in accommodation that will have
paid staff or volunteers present – for example, public housing, community housing and
aged care. These forms of housing (that have staff or volunteers present), are
considered “workplaces” under smokefree laws and are therefore required by law to be
smokefree. However, smokefree laws make an exception for personal living and
sleeping areas within some forms of supported accommodation (referred to under the
Tobacco Act as “residential care facilities”).(22) In practice this means that all common
areas of supported accommodation are legally required to be smokefree, but for many
types of supported accommodation it is not a legal requirement to be smokefree within
a person’s bedroom or personal living area. Housing providers may have individual
policies in place banning smoking in private living areas, so residents should check with
their provider about whether there is a policy in place.
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
7
7.
Gathering evidence of smoke infiltration
There are no guidelines on the type of information required to prove smoke infiltration in
Victoria. There are also no reported court or tribunal decisions considering this issue. You can
start by keeping a diary that:

shows that the smoke complained of is caused by the relevant neighbour

records the frequency (date, time and duration) of the smoke infiltration

describes the volume (extent, degree or intensity) of smoke entering the home or personal living
space

describes how the smoke interfered with the use and enjoyment of your home or personal living
space (e.g. smell, physical or health effects, odour removal or cleaning, or other impact on use and
enjoyment of the lot).
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
8
8.
Owners corporation rules
Summary – Rights under owners corporation rules
Owners and tenants of private apartments experiencing smoke infiltration can:
(a) Seek to negotiate with their smoking neighbour and owners corporation to address
smoke infiltration issues.
(b) lodge formal complaints with their owners corporation that neighbours or their
guests are using their apartments in a manner that is causing a hazard to the health
of others and/or is obstructing the lawful use and enjoyment of the common
property by smoking, in breach of the owners corporation rules; and/or
(c) request their owners corporation to create specific rules dealing with smoking within
apartments as well smoking on common property.
8.1
Relevance of smokefree laws
As discussed at part 6 of this paper, any area that is considered an enclosed workplace,
including areas accessible to staff must be smokefree under the Tobacco Act.(23) This
would include common areas in apartment blocks that are accessible to staff e.g. paid
employees of the owners corporation or (potentially) staff operating out of private
apartments within the building. Private living areas that are not accessible to staff are not
required under the Tobacco Act to be smokefree. Therefore, other options for dealing with
smoke infiltration need to be identified.
8.2
Overview of owners corporations
Apartment buildings with multiple apartment owners will have an owners corporation
which is made up of all the individual apartment owners. One of the main responsibilities of
owners corporations is the management of common property (which can include things like
gardens, walls, stairways, pathways, driveways, lifts, foyers and fences).(24, 25) Owners
corporations also deal with complaints of residents and enforce the owners corporation
rules.
An owners corporation can operate at five levels:
(a) The owners corporation – which is made up of all the lot owners.(25)
(b) A committee – made up of elected lot owners or proxies of lot owners.(26)
 Owners corporations with 13 or more lot owners must elect a committee
each year with a minimum of three and maximum of 12 members. Owners
9
corporations with 12 lots or less can choose whether to elect a
committee.(27)
 Resolutions of the committee have effect as a resolution of the owners
corporation.(28)
(c) A delegate of the owners corporation. The owners corporation can delegate many
(but not all) powers to certain representatives, including the manager, chairperson,
secretary, a lot owner or an employee of the owners corporation.(29)
(d) A delegate of the committee. The committee may delegate its powers and functions
to the committee manager or a lot owner.
(e) Sub-committee: The committee may appoint sub-committees (sub-committees
cannot make resolutions/decisions on behalf of the owners corporation).(30)
The committee as well as delegates of both the owners corporation and committee, can
exercise many (but not all) of the powers of the owners corporation.(31) For example, they
cannot make rules (as rule making requires a ‘special resolution’ of the owners
corporation)(32) but can enforce rules.(33) When seeking to deal with smoke infiltration it
might be necessary to contact the owners corporation to determine who the relevant
representative is.
8.3 Steps for working with the owners corporation to address smoke
infiltration
Below are some suggested steps for working with your owners corporation to address
smoke infiltration.

Start keeping track of exposure to smoke infiltration. It is important that specific steps
are taken to demonstrate exposure to smoke infiltration. See part 7, Gathering evidence
of smoke infiltration.

Access the owners corporation rules.
o Owners corporations will either create rules themselves or adopt the “Model Rules
for Owners Corporations” (‘the model rules’) set out in the Owners Corporations
Regulations 2007 (Vic). A copy of the model rules is available online at
https://www.consumer.vic.gov.au/housing-and-accommodation/ownerscorporations/rules-and-resolving-disputes/model-rules .
o There is no model rule specifically about smoke infiltration, but there will be general
rules that are relevant to smoke infiltration. These rules are listed in Table 1 below.
o If the rules have been prepared by the owners corporation and those rules do not
address an issue that is included in the model rules, then the particular model rule
10
relevant to that issue will apply.(34, 35) Therefore, if the owners corporation rules
do not address the issues noted in Table 1 below, for example, on activities causing a
hazard to health, then model rule 1.1 will apply.
o Table 1 provides examples of how the model owners corporations rules could apply
to smoke infiltration; however, there are no reported court or tribunal decisions on
smoke infiltration under the model rules so these examples do not reflect arguments
that have been tested through disputes. There is a NSW tribunal decision that held
that smoke infiltration caused by neighbours was a considerable interference with
enjoyment of lots as well as a nuisance(36) and a more recent case that held that
smoke infiltration caused a hazard to those exposed.(37) While NSW decisions are
not binding on Victorian tribunals, these decisions generally support a view that
smoke infiltration can potentially breach owners corporations rules relevant to
health, safety and enjoyment of property.
Table 1 – Model rules potentially relevant to smoke infiltration
Model rule 1.1 – Health, safety and security of lot owners, occupiers of lots and others
A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard
to the health, safety and security of an owner, occupier, or user of another lot.
Model rule 1.1 (or an equivalent) could potentially apply where a person is smoking in their
apartment and smoke is infiltrating another apartment or the common property.
Model rule 3.1(1) – Use of common property
An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the
common property by any other person entitled to use the common property.
Model rule 3.1 (or an equivalent) could potentially apply where a person is smoking in the
common property (such as entrances and hallways) in a manner that exposes other
residents to secondhand smoke.
Model rule 5.1 – Behaviour of owners, occupiers and invitees on common property
An owner or occupier of a lot must take all reasonable steps to ensure that guests of the
owner or occupier do not behave in a manner likely to unreasonably interfere with the
peaceful enjoyment of any other person entitled to use the common property.
Model rule 5.1 (or an equivalent) could potentially apply where guests of an apartment
owner smoke in the common property or where guests smoke within an apartment and
smoke infiltrates the common property.
11
 Seek to negotiate with the owners corporation or owners corporation committee
Consumer Affairs Victoria recommends, where appropriate, discussing concerns about
breaches of the rules with the person involved, the manager or the owners corporation
committee.(38) The owners corporation might be able to resolve the matter by writing to,
or speaking with, the people involved. As discussed in part 3, the health hazards of
secondhand smoke exposure are beyond doubt and it is accepted that there is no safe level
of exposure to secondhand smoke. Therefore, it should be enough to:
o demonstrate that smoke infiltration is occurring;
o state that secondhand smoke is a known risk to health and that there is no safe level
of exposure to secondhand smoke; and
o explain how the smoke infiltration is breaching the owners corporations rules and
impacting you (for example, by impacting your health, or by obstructing your use
and enjoyment/unreasonably interfering with your peaceful enjoyment of common
property) (see Table 1 and part 7 on Gathering evidence of smoke infiltration)

It might be possible to have the owners corporation rules amended to expressly ban or
restrict smoking.
o A tenant/occupier can informally request a member of the owners corporation to
consider introducing smokefree rules or rules limiting smoking. It is also possible for
a tenant/occupier to participate and vote at owners corporations meetings by acting
as proxy of another lot owner (with their written consent and support of a majority
of the owners corporation committee if specifically required).(39) Such an
arrangement could allow a tenant/occupier to advocate for the introduction of a
smokefree rule. Information on the process for making owners corporations rules is
available at: http://www.consumer.vic.gov.au/housing-andaccommodation/owners-corporations/rules-and-resolving-disputes/how-to-makeowners-corporation-rules
o Owners corporations have statutory powers to create rules for the purpose of the
“control, management, administration, use or enjoyment” of common property
and/or lots (40) including with respect to:
(a) ensuring the health, safety and security of lot owners, occupiers and visitors; and
(b) changing use of lots.(41)
o Among other things, any rules created by owners corporations cannot be
inconsistent with the model rules or any other laws and cannot discriminate against
a lot owner or occupier.(42)
12
o There do not appear to be any reported cases in Victoria considering the extent to
which owners corporations might be able to regulate or ban smoking under the
powers described above.(43)
o It is possible that owners corporations in Victoria could make a rule that restricts
smoking where:
o it could cause a hazard to health; and/or
o it obstructs lawful use and enjoyment of the common property; and/or
o it causes unreasonable interference with the peaceful enjoyment of common
property.
Below is some suggested wording for an owners corporation rule specifically addressing
smoking. As noted above, the wording of any rule created by an owners corporation must
not be inconsistent with the current model rules. The below wording has therefore been
drafted with this in mind. However, it is important to note that the extent to which an
owners corporation in Victoria can make its own rules prohibiting or restricting smoking is
not entirely clear at present.
Example wording:
An owner or occupier of a lot must not smoke or allow visitors to smoke in a private lot or
common area where the smoke created:
(a) causes a hazard to the health of others; or
(b) obstructs lawful use and enjoyment of the common property; or
(c) unreasonably interferes with the peaceful enjoyment of common property.
o It is reasonable to expect that this kind of by-law would fall within the powers of an
owners corporation because:
o it would be consistent with the model rule on ensuring health, safety and
security of lot owners – particularly because of the known health risks of
secondhand smoke.
o it would not directly discriminate against lot owners and occupiers because it
would apply equally to everyone. Even though a smokfree rule would only
impact smokers in terms of limiting their chosen activities, such limitations
would be reasonable given the known health risks of secondhand smoke
exposure.(44)
o Owners corporations might want to introduce a rule that seeks to ban smoking
completely. This kind of rule might be within the “control” powers of owners
corporations,(43) but this is not a certainty. Such a rule might be more open to
challenge because it could possibly ban smoking in circumstances where there might
13
not be any risk of others being exposed to secondhand smoke (and therefore, no
“hazard to health”). These are legally complicated issues.
o Occupants or apartment owners who do not want a rule banning or restricting
smoking could seek to challenge that rule through the Victorian Civil and
Administrative Tribunal (VCAT) on the grounds that the rule goes beyond the rulemaking powers of owners corporations.(45) As noted above, there are no reported
court or tribunal decisions considering the validity of an owners corporation rule that
specifically bans or limits smoking.

If negotiations fail you can lodge a formal complaint with the owners corporation or
Consumer Affairs Victoria
If the issue remains unresolved, occupiers can lodge formal complaints with the owners
corporation. The Owners Corporation Act 2006 (Vic) and the model rules require people
wishing to make a complaint to use an approved form.(46) The owners corporation must
make the form available on request and the form is also available on the Consumer Affairs
website.(47) The process used for resolving the issue is set out in the model rules (or will
otherwise be set out in the owners corporation rules).(48) It can include the following:
o Conciliation with Consumer Affairs Victoria: It is possible to lodge a complaint
directly with Consumer Affairs Victoria without first lodging a complaint with the
owners corporation (however Consumer Affairs Victoria may require that attempts
be made to resolve the matter privately prior to it becoming involved).(49, 50)
Consumer Affairs Victoria can conduct conciliation or mediation but cannot make a
binding decision on the matter.(51, 52)
o Taking the matter to VCAT: It is possible for owners, occupiers, as well as the owners
corporation to apply to VCAT to seek to have the matter resolved.(53) Where an
owners corporation seeks to take action in VCAT, it must first follow the dispute
resolution required by its rules (or the model rules).(54)
14
Summary – Dealing with smoke infiltration through owners corporation rules
It is important to seek legal advice if you have any concerns about negotiating with your
landlord or the owners corporation. Below is a summary of steps you can take.
A. Demonstrate exposure to smoke infiltration. There is no specific guidance on how
the model rules on health hazards might operate with respect to smoke infiltration.
Therefore, we suggest that, at a minimum, the process and information described in
part 7 of this guide be followed. This involves keeping a written account of how and
when smoke infiltration is impacting you.
B. Access owners corporation rules and identify the rules most relevant to smoke
infiltration. These will either be rules developed by the owners corporation or the
model rules. Look for rules that either relate directly to smoking or to health hazards
and the enjoyment of individual lots and common property generally.
C. Discuss with your landlord and/or owners corporation how the smoke infiltration
is breaching the owners corporation rules. For example, by:
o impacting the health, safety and security of lot owners, occupiers or visitors;
o obstructing the lawful use and enjoyment of common property (including by
guests); and/or
o unreasonably interfering with the peaceful enjoyment of common property.
It is important to communicate that it is beyond doubt that secondhand smoke is
a health hazard. Parts 3 and 7 include information that you can include when
explaining this.
D. Seek to amend/create rules on smoking and addressing smoke infiltration. You
could try negotiate with the owners corporation on developing a rule that prohibits
smoking in certain circumstances, for example, where it is likely to cause a hazard to
health or impact use and enjoyment of lots and common property.
E. Consider lodging a formal complaint with Consumer Affairs Victoria. Contact
Consumer Affairs Victoria for further information.
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
15
9 Rights and obligations of landlords and tenants under the RTA
Summary – Rights under the Residential Tenancies Act 1997 (Vic)
Rights under the Residential Tenancies Act 1997 (Vic) (RTA) apply to people living in
privately rented apartments, public housing and community housing (among others). Under
the RTA, landlords have a duty to take all reasonable steps to ensure that their tenant has
‘quiet enjoyment’ of the rented premises. Where neighbours have the same landlord
(which is usually the case with public or community housing), the “quiet enjoyment” duty
might in some circumstances require the landlord to take all reasonable steps to prevent
one of their tenants from causing a nuisance to the other. A person in these circumstances
can write to their landlord informing them that they are experiencing smoke infiltration
from their neighbour (who is another tenant of the landlord) which is interfering with the
use and enjoyment of their apartment.
 Relevance of smokefree laws
As discussed at part 6, any area that is considered an enclosed workplace, including areas
accessible to staff, must be smoke free under the Tobacco Act.(23) This would include
common areas in public and community housing accessible to staff. Private living areas that
are not accessible to staff are not required under the Tobacco Act to be smokefree (except if
a business is operating from a private apartment, it must be smokefree while staff, clients or
other non-residents are present); therefore, other options for dealing with smoke
infiltration need to be identified.
 Obligations of landlords under the RTA
Under section 60 of the RTA, tenants have duties not to:
o use or permit their apartment to be used in a way that causes a “nuisance”; and
o use or permit their apartment and common areas to be used in a way that causes an
“interference with the reasonable peace, comfort or privacy of any occupier of
neighbouring premises”.
It is up to landlords to enforce the duties to avoid a nuisance or unreasonable interference.
Further, landlords have a duty under the RTA to take all reasonable steps to ensure that
their tenant has ‘quiet enjoyment’ of the rented premises (section 67). Therefore, where:
o neighbours have the same landlord; and
o that landlord fails to take reasonable steps to prevent one of the neighbours from
either causing a nuisance or interfering with the reasonable peace, comfort or
privacy of other neighbours – this might in some circumstances result in a breach of
the landlord’s duty to take all reasonable steps to ensure that their tenant has quiet
enjoyment of the rented premises (under s 67 of the RTA).(55)
16
 Smoke infiltration as a ‘nuisance’ or ‘unreasonable interference’
These phrases are not defined under the RTA and reported Victorian court and tribunal
decisions provide limited guidance on what the key considerations might be in determining
whether a particular activity could constitute a “nuisance” or “unreasonable interference”.
Also, there are currently no reported Victorian cases dealing with the issue of smoke
infiltration as a nuisance. The phrase “nuisance” is generally understood to refer to
activities that interfere with a person’s use and enjoyment of property.(56) As discussed at
part 11, it is also used under public health laws to describe issues that are dangerous to
health or offensive or injurious to personal comfort.(57)
Smoke infiltration between neighbours has been considered under Queensland and New
South Wales strata laws on nuisance. In NSW, the Consumer, Trader and Tenancy Tribunal
accepted that smoke infiltration was causing residents significant problems on the basis of
what it described as “informal” evidence in the form of emails containing complaints about
cigarette smoke over different days.(36)
Taking a different approach, the Queensland Civil and Administrative Tribunal held that in
order to prove that smoke infiltration is causing a nuisance to neighbours, it would need to
be shown that the smoke infiltration was of “such a volume or frequency that it would
interfere unreasonably with the life of another lot owner of ordinary sensitivity”.(58) The
fact that someone might be particularly sensitive to smoke infiltration is not relevant under
this test. Instead, proving “unreasonable interference” requires objective evidence of the
degree of interference to the average person including through the quantification of the
volume and frequency of the smoke.(59)
It is not possible to know how Victorian courts and tribunals would approach these kinds of
issues and the type of evidence they might require in order to prove a nuisance under the
RTA. In the meantime, part 7 of this paper provides suggestions on gathering evidence of
smoke infiltration.
Summary – Dealing with smoke infiltration through quiet enjoyment rights
It is important to seek legal advice if you have any concerns about negotiating with your
landlord. Below is a summary of steps you can take.
Either through a conversation or written correspondence with your landlord:
A. Identify the shared landlord. The person causing the smoke infiltration must have the
same landlord as the person affected by the smoke infiltration if ‘quiet enjoyment’ rights
are being relied on. Therefore, identify that your landlord is also the landlord of the
person causing the smoke infiltration.
17
B. Demonstrate exposure to smoke infiltration. There is no specific guidance on how the
RTA laws on nuisance and unreasonable interference apply to smoke infiltration.
Therefore, we suggest that, at a minimum, the process and information described in
part 7 of this guide be followed. This involves keeping a written account of how and
when smoke infiltration is impacting you.
C. State the hazards of secondhand smoke exposure generally. It is important to
communicate that it is beyond doubt that secondhand smoke is a health hazard. Parts 3
and 7 include information that you can include when explaining this.
D. Explain how the smoke infiltration is impacting you and your enjoyment of the
premises. Examples include the unpleasant smell, physical or health effects, the need
for odour removal or cleaning, or any other impact on the use and enjoyment of
apartments and common areas.
Next steps: If attempts to negotiate with the landlord are unsuccessful, seek further advice
or information from:
- Consumer Affairs Victoria: <http://www.consumer.vic.gov.au/>
- A Lawyer or housing advocate
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
10 Rights and obligations of rooming house operators and residents
under the RTA
Summary – rooming houses
Under the Residential Tenancies Act 1997 (Vic) (RTA), rooming house operators can create
rules covering activities that are hazardous to health or smoking specifically. Rooming
house residents can check these rules to see if smoking is covered and if not, consider
suggesting that a smokefree rule be introduced. Also rooming house residents have a duty
to not do anything that interferes with the proper use and enjoyment of individual rooms or
shared facilities. Residents can inform rooming house operators of the fact that smoke
infiltration is unreasonably interfering with their proper use and enjoyment of their room
and/or other facilities because it is both a serious health hazard and unpleasant.

Relevance of smokefree laws
18
As discussed at part 6, any area that is considered an enclosed workplace, including areas
accessible to staff, must be smoke free under the Tobacco Act.(23) This would include
common areas in rooming houses accessible to staff. Private living areas that are not
accessible to staff are not required under the Tobacco Act to be smokefree; therefore, other
options for dealing with smoke infiltration need to be identified.
 What are “rooming houses”?
Rooming houses are properties that have one or more rooms available for rent within the
one building. Under law, in order to be considered a “rooming house”, the place needs to
have at least four or more occupants or be declared to be a rooming house.(60) Residents of
a rooming (or boarding) house have an individual agreement with the owner/manager of
the house.(61) Residents either have their own individual room or a shared room, and share
communal facilities like bathrooms, kitchens, laundries and other common areas.(61, 62)
Under the RTA, rooming house residents have different rights and obligations to other types
of “tenants”.
 Rooming House Standards
Rooming houses must comply with minimum standards set out in the Residential Tenancies
(Rooming House Standards) Regulations 2012 (Vic). The standards do not currently address
smoking but rules about smoking can be created by rooming house operators (see below).
 House rules
A rooming house operator may create rules relating to the use and enjoyment of facilities
and rooms.(63) Individual rooming houses may have specific rules on activities that cause a
nuisance to others or that cause hazards to health. If there are no rules relevant to
smoking, residents can suggest to the rooming house operator that they create rules on
smoking in common areas or rooms. Rooming house operators are required to take all
reasonable steps to ensure that the house rules are observed by all residents.(64)
 Quiet enjoyment rights and obligations
Residents of rooming houses have an obligation to not do (or allow visitors to do) anything
in or near the rooming house which interferes with the privacy, and peace and quiet of the
other residents or their proper use and enjoyment of the rooming house.(65) There are
currently no reported Victorian court or tribunal cases dealing with smoke infiltration in
rooming houses. However, given the serious health risks of secondhand smoke exposure, it
would be reasonable to expect that smoking could breach this rule. Further, rooming house
operators have a duty to take all reasonable steps to ensure that a resident of a shared
room does not do or permit anything that interferes with the privacy, peace and quiet of, or
the proper use and enjoyment of the room by, other residents of the room.(66) Again,
because of the significant health risks of secondhand smoke exposure, it is highly likely
rooming house operators would need to prohibit smoking in shared rooms in order to
comply with this duty.
19
Summary – Dealing with smoke infiltration through rooming house rights
It is important to seek legal advice if you have any concerns about negotiating with your
rooming house operator. Below is a summary of steps you can take:
Either through a conversation or written correspondence with your rooming house
operator:
A. Identify any house rules on smoking. Point to any house rules that address smoking or
activities that could cause a nuisance or hazards to health (note that not all house rules
will address these issues).
B. Demonstrate exposure to smoke infiltration. There is no specific guidance on how the
rooming house rights on privacy and enjoyment might apply to smoke infiltration.
Therefore, we suggest that, at a minimum, the process and information described in
part 7 of this guide be followed. This involves keeping a written account of how and
when smoke infiltration is impacting you.
C. State the hazards of secondhand smoke exposure generally. It is important to
communicate that it is beyond doubt that secondhand smoke is a health hazard.
D. Explain how the smoke infiltration is impacting you, your privacy and enjoyment of
the premises. Examples include the unpleasant smell, physical or health effects, the
need for odour removal or cleaning, or any other impact on the use and enjoyment of a
private room or common areas.
Next steps: If attempts to negotiate with you rooming house operator are unsuccessful,
seek further advice or information from:
- Consumer Affairs Victoria: <http://www.consumer.vic.gov.au/ >
- A Lawyer or housing advocate
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
20
11 Nuisance – complaints to the local council
Summary – complaints to local councils
Anyone experiencing smoke infiltration from a neighbour can write to their local council to
inform them that they are experiencing a “nuisance” which includes something that is a
hazard to health or negatively impacts personal comfort. This includes people who are living
in stand-alone houses as well as people living in multi-unit settings. Local councils are
required to investigate all nuisance complaints and to seek to remedy nuisances as far as
reasonably possible. This could involve requiring neighbours not to smoke in particular
places where smoke infiltration will occur and expose other neighbours to secondhand
smoke. Local councils have the power to seek enforcement through the Magistrates’ Court
where people fail to comply with their notices. Where the smoke infiltration is coming from
a property that is being rented, another option may be to contact the real estate agent and
landlord of that property to seek assistance in overcoming the smoke infiltration issues.
 Causing a nuisance is an offence
The Public Health and Wellbeing Act 2008 (Vic) (‘PHW Act’) makes it an offence for a person
to cause a nuisance or to knowingly allow a nuisance to exist or emanate from land owned
or occupied by them.(67) ‘Nuisances’ are things that are, or are liable to be, dangerous to
health or offensive. “Offensive” in this context means things that are noxious or injurious to
personal comfort.(68) There are no reported court or tribunal decisions considering smoke
infiltration under the PHW Act nuisance provisions. However, exposure to secondhand
smoke is a known health hazard and can also heavily impact personal comfort.

People can lodge complaints with their local council about nuisances and complaints
must be investigated
Under the PHW Act, people can complain to their local council about smoke infiltration that
they believe is causing a nuisance to them.(69) Local councils are required to investigate
complaints and determine whether or not they think that a nuisance exists.(69) Remember
that if the local council does not consider that a nuisance exists, it will not take the matter
further.
 Local councils have a responsibility for enforcing laws against nuisances
Local councils have a duty to remedy as far as is reasonably possible all nuisances existing in
their municipal district.(70) If the local council considers that a nuisance exists, it should
write to the person responsible for the nuisance (or owner or occupier if that person cannot
be found), setting out what the council wants done about it and the timeframe in which it
must be done.(69, 71) Councils can also advise the person who made the complaint of ways
to potentially settle the matter privately.(72)
 What happens if the local council fails to investigate the nuisance complaint?
21
If the local council fails to investigate the complaint within a reasonable time, the person
who made the complaint can take the matter directly to the Magistrates Court.(73) If the
person who made the complaint had reasonable grounds for doing so, the Magistrate can
order the local council to pay the costs and expenses of the person who made the complaint
(but is not required to do so).(74) Alternatively, if the Magistrate finds the complaint to be
frivolous or vexatious, it can order the person who made the complaint to pay the costs and
expenses of the person who has answered the complaint.(75)
 What can the Magistrates’ Court order?
Where a complaint is taken to the Magistrates Court by the local council and the Magistrate
considers that a nuisance exists (or is likely to recur), it can order the person to comply with
what the original notice from the local council requested they do as well as require works to
be carried out to prevent the nuisance from happening again.(76) Where the local council
fails to investigate the complaint in a reasonable time, and the person experiencing the
nuisance goes to the Magistrates Court directly, the court summon the person against who
the complaint was made to appear before the court and can proceed as if the matter had
been taken by the local council(77) (e.g. by making an order requiring the person to carry
out works to prevent the nuisance from happening again).
A person who fails to comply with an order of the Magistrates’ Court might be guilty of an
offence and can be ordered to pay a fine.(78)

What happens if the local councils investigates the complaint, but does not consider
that a nuisance exists?
The only circumstances in which a person can go straight to the Magistrates Court under the
PHW Act about a nuisance is where the local council fails to investigate the complaint in a
reasonable time.(73) If the council does investigate, and finds no nuisance, then the person
who made the complaint to the council would need to pursue other options for trying to
deal with the smoke infiltration.(79) This might include getting legal advice about taking
court action under “common law” principles of “private nuisance”.
 Other options – contacting the landlord of the neighbour
If the neighbour causing the smoke infiltration is renting the property, consider contacting
the responsible real estate agent or landlord of the property to:
(a) ask whether they permit their tenants to smoke on the property; and
(b) inform them of the smoke infiltration issues.
As a general rule, landlords will not be responsible for nuisances caused by their tenants
towards neighbours (that are not also tenants of the landlord).(80) However, landlords may
nevertheless be willing to assist in finding a solution to the smoke infiltration issues.
22
Summary – Dealing with smoke infiltration through complaints to the local council
It is important to seek legal advice before deciding to take a matter to court (because if you
are unsuccessful at court, you may have to pay the local council’s costs and expenses).(75)
Below is a summary of steps you can take:
Contact your local council to determine the relevant person to lodge a nuisance complaint
with. The following information should be included in written correspondence:
A. Demonstrate exposure to smoke infiltration. There are no reported Victorian
Magistrates Court decisions providing guidance on how the PHW Act nuisance laws
operate and the types of evidence required to prove a smoke infiltration nuisance.
Therefore, we suggest that, at a minimum, the process and information described in
part 7 of this guide be followed. This involves keeping a written account of how and
when smoke infiltration is impacting you.
B. State the hazards of secondhand smoke exposure generally. It is important to
communicate that it is beyond doubt that secondhand smoke is a health hazard. Parts 3
and 7 include information that you can include when explaining this.
C. Explain how the smoke infiltration is impacting you, your health and enjoyment of
your home. Examples include the unpleasant smell, physical or health effects, the need
for odour removal or cleaning, or any other impact on the use and enjoyment of your
home.
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
23
12 Equal Opportunity law complaints
Summary – Equal opportunity complaints
It is unlikely that a ban on smoking in private apartments or common property would be
considered unlawful discrimination against smokers. This is because rights to smoke are not
protected under equal opportunity laws. However, in some circumstances, allowing people
to smoke in private apartments or common property might be considered to ‘indirectly’
discriminate against non-smokers. “Indirect” discrimination occurs where a policy or
practice applies equally to everyone, but because someone has a particular attribute (for
example, age, pregnancy status or disability), a policy or practice has a particularly negative
impact on them. In the case of smoke infiltration, it might be that the policy or practice of
allowing people to smoke in particular areas of multi-unit settings indirectly discriminates
against people who are particularly susceptible to harms caused by secondhand smoke
exposure, such as young people, pregnant women and people experiencing some illnesses.
Because policies and practices that indirectly discriminate will be lawful where they are
reasonable to maintain in the circumstances, it should be explained why a policy of allowing
smoking in relevant areas is unreasonable and how a policy restricting smoking so that it
does not impact others, would be reasonable in the circumstances.
 Discrimination against smokers or non-smokers?
As summarised above, it is unlikely that a ban on smoking would be considered unlawful
discrimination against smokers. This is because rights to smoke are not protected under
equal opportunity laws.(81) In contrast, in some circumstances allowing smoking might
indirectly discriminate against non-smokers with a particular sensitivity to secondhand
smoke. This is explained further below.
 What is indirect discrimination?
While it is against the law in some circumstances to directly discriminate against someone
on the basis of particular personal attributes (for example, refusing to accept someone as a
tenant because they have a disability), it can also be against the law to have policies or
practices in place that have the effect of indirectly discriminating against a person. “Indirect”
discrimination occurs where a policy or practice applies equally to everyone, but because
someone has a particular “protected” attribute (for example, age, pregnancy status
disability or parental status), that policy or practice has a particularly detrimental impact on
them. For example, a policy that requires all staff to work standard 9am–5pm hours,
regardless of whether this is necessary for the operational needs of a business, may
indirectly discrimination against staff who have children and need to drop them off or pick
them up from childcare or school. This indirect discrimination would be on the basis of their
24
parental status. A policy or practice which has the effect of indirectly discriminating against
a person on the basis of a protected attribute is only lawful where it is reasonable in the
circumstances. Whether a policy or practice is reasonable depends on a number of factors,
including the extent of the disadvantage caused and any costs associated with putting an
alternative policy or practice in place.
 Indirect discrimination and smoke drift
An example of indirect discrimination could be a policy or practice that allows smoking
within multi-unit settings in circumstances where it causes secondhand smoke exposure to
people who have a particular sensitivity to secondhand smoke. While exposure to
secondhand smoke is dangerous to everyone, there are groups with particular susceptibility
to the harms of secondhand smoke exposure. This includes children, pregnant women, and
people experiencing respiratory illness.(1) Therefore, allowing smoking in multi-unit settings
may in some circumstances amount to indirect discrimination against people with these
personal attributes – all of which are protected under equal opportunity laws.(82, 83) There
are currently no reported court or tribunal decisions dealing directly with the issue of
whether smoke infiltration in multi-unit settings can give rise to indirect discrimination so it
is difficult to predict how these issues might be decided if disputed in a Tribunal.(84)
Summary – Dealing with smoke infiltration through equality rights
It is important to seek legal advice if you have any concerns about negotiating with
landlords/ agents/rooming house operators, etc. Below is a summary of steps to take if
relying on equality rights to deal with smoke infiltration.
A. Identify the relevant policy or practice: Identify where people are permitted to smoke
(for example, on common property and/or in private apartments/units).
B. Demonstrate exposure to smoke infiltration. There is no specific guidance on how
equality laws might apply in cases of smoke infiltration. Therefore, we suggest that, at a
minimum, the process and information described in part 7 of this guide be followed. This
involves keeping a written account of how and when smoke infiltration is impacting you.
C. Identify a protected attribute and your particular susceptibility to harms caused by
secondhand smoke. You must have one of the attributes listed under equal opportunity
laws in order to deal with smoke infiltration through equality rights and your particular
attribute must also make you more susceptible to the health hazards caused by
secondhand smoke. There are certain groups and demographics who are known to be
more susceptible to the health hazards caused by secondhand smoke exposure,
including young people, people who are pregnant and people with existing respiratory
issues. Age, pregnancy and disability are all protected attributes under equal
opportunity laws.
25
D. Discuss why allowing smoking is unreasonable. Because policies and practices that
indirectly discriminate will be lawful where they are reasonable to maintain in the
circumstances, it should be explained why a policy of allowing smoking and smoke
infiltration is unreasonable and how the restriction of smoking so that it does not impact
others, would be reasonable in the circumstances. Relevant issues to raise might
include:
o The extent to which the policy of allowing smoking causes a disadvantage or
negative impact (this might include health consequences, the onerous option of
seeking a new smokefree residence that also meets other needs (e.g.
location/size/access to public transport/proximity to work and schools, etc.).
o The fact that the disadvantage could be easily overcome by introducing a policy
restricting smoking to places where it won’t impact others, involving minimal costs
(associated with signage).
o The fact that there is a growing trend towards smokefree homes(85) means that a
smokefree policy or policy restricting smoking is unlikely to reduce the desirability of
the property to prospective tenants.
Please note: These information sheets do not constitute legal advice and should not be
relied on as such. Consider whether you or your organisation should seek legal advice
tailored to your specific circumstances.
26
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29
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Public Health and Wellbeing Act 2008 (Vic), section 60.
The Law Handbook, Nuisance. Available from:
http://www.lawhandbook.org.au/handbook/ch10s02s02.php
Public Health and Wellbeing Act 2008 (Vic), Explanatory Memorandum, Clause 62,
page 17.
Public Health and Wellbeing Act 2008 (Vic), section 63(1).
Public Health and Wellbeing Act 2008 (Vic), section 63(3).
Public Health and Wellbeing Act 2008 (Vic), Section 63(5).
Public Health and Wellbeing Act 2008 (Vic), section 197(4).
Public Health and Wellbeing Act 2008 (Vic), section 63(2).
Public Health and Wellbeing Act 2008 (Vic), section 197(7).
Public Health and Wellbeing Act 2008 (Vic), section 64.
Peden P/L & Ors v Bortolazzo [2006] QCA 350 [29].
While “disability” is a protected attribute under the Equal Opportunity Act 2010
(Vic), addiction to nicotine is unlikely to be characterised as a disability. Even if it
were, given the serious health harms associated with secondhand smoke exposure,
there are good arguments to say that measures taken to prevent secondhand smoke
are reasonable in the circumstances (and therefore not unlawful discrimination). See
the Statement of Compatibility to the Corrections Amendment (Smoke-Free Prisons)
Bill 2014, and the discussion regarding ‘recognition of equality before the law’ in
particular: Parliament of Victoria, Hansard, 27 March 2014 pp 1450-1451.
Equal Opportunity Act 2010 (Vic), sections 6 and 9, and division 5.
Commonwealth laws prohibit indirect discrimination in accommodation. For a
summary of these laws, visit the Australian Human Rights Commission’s website:
https://www.humanrights.gov.au/our-work/legal/legislation.
The case of Neil Francey and Sue Meeuwissen v Hilton Hotels of Australia Pty Ltd
found discrimination in the context of secondhand smoke exposure in a hotel venue.
For example, Cancer Council Victoria data on smoking in the home illustrates a
significant increase in the proportion of smokers reporting that they always or
usually smoke outside the home – from 53% in 1998 to 84% in 2013. Eighty-four per
cent of adults surveyed in 2013 also believe that smoking should not be allowed in
areas where children are present: Centre for Behavioural Research in Cancer, Topline
Research Report, May 2014.
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