How do we enforce a new by-law that curtails existing behaviour?

Start by issuing information newsletters explaining why the new by-laws are necessary and that they have majority support. The tone of these should be as neutral and non-aggressive as possible.

Explain that failure to pass the new by-laws could expose the owners corporation – and make it clear, that’s all owners – to expensive litigation that they will have no choice but to defend if they don’t pass the by-laws.

You might also tell owners that there will be a grace period to allow residents to adjust to the new by-laws and their implications.

Once the by-laws are in place, get the committee to agree on that grace period – during which no breach notices will be issued – but warn residents that afterwards they will be liable to be issued with Notices to Comply if they breach the by-laws, which can lead to financial penalties and Tribunal orders.

And don’t get dragged into the “three warnings” nonsense.  Notices to Comply are warnings – they just happen to have teeth if they are ignored.

The OC is not liable in a lot v lot  dispute unless one party can show that the OC allowed the poor behaviour.  For instance, Smokin’ Joe gets taken to NCAT by the upstairs neighbour and uses the fact that the Owners Corp had chosen not to pass a by-law restraicting smoking as defacto permission to continue doing so.  next stop, upstairs neighbour takes OC to tribunal to force them to pass an appropriate by-law.

Scenario two, a resident objects to having to walk thorough clouds of smoke from smokers on common property.  Again, the OC could be taken to the Tribunal for failure to maintain common property for the safety and wellbeing of all residents.

Doing nothing is not a “zero sum” event – inaction may have consequences and the OC has to accept responsibility for them if owners choose to maintain the status quo.

You’re right, strictly speaking.  But the Owners Corporation has duties around the protection of residents and any owner or tenant could go to the Tribunal and claim (under section 232) that the OC had failed to protect owners from the effects of passive smoking by allowing smoking on common property.

The Tribunal could then order the OC to remedy this and the simplest way to do that would be for the OC to pass a by-law.  There is no simple mechanism that I know of for ordering the passing of a by-law – but this may only strengthen your argument that failure to pass a standard by-law could lead to considerable legal expenses after which you’d have to do it anyway.