There is an immediate need to reform Australian State and Territory strata laws to minimise exposure to second-hand smoke (SHS) in multiunit housing (MUH), particularly in light of the trend towards higher density living. SHS is a cause of lung cancer and other health problems in nonsmokers and no safe level of exposure has been established. Despite being a common cause of dispute in MUH, currently no strata regime in any State or Territory includes a model by-law that specifically addresses smoking, as is the case with other contentious issues like pets. Smoking disputes can currently be dealt with under general strata provisions on nuisances or hazards, but the case law in this area demonstrates that these provisions can be ineffective in dealing with the serious health issue posed by SHS. With enough votes, owners' corporations can introduce a smoking by-law. However, without legal advice it may be difficult for owners' corporations to develop a by-law they can be confident falls within their by-law making powers. With several jurisdictions currently reviewing their strata laws, there is a valuable opportunity to sensibly reform the law in the interests of public health. In this article, we survey the legal landscape and consider options for a model by-law on smoking.
Keywords: apartments; bylaws; public health; secondhand smoke; smoking; strata law.