15.7Legislation
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Every state and territory bans smoking in enclosed public places. Indoor environments such as public transit, office buildings, shopping malls, schools, cinemas and office building are smokefree across the country. There is however, great variability between jurisdictions in terms of how far the ban is extended and what sorts of places are granted exemptions. Regions also have different approaches for managing smoking near public buildings and outdoor areas adjacent to enclosed areas. A detailed overview of these important variations among each state and territory is summarised in this section. A summary table of the state and territory smokefree laws (Table 15.4) follows at the end of this section.
15.7.1 Commonwealth legislation
While smokefree environments fall primarily under state and territory control, there are three areas of Commonwealth legislation. Regulations under the Air Navigation Act 1920 banned smoking on all domestic flights in 1987.124 This was extended to include all international flights in 1996.125
All registered buses under the Interstate Road Transport Act 1985 must prohibit smoking
on board.
The Airports Act 1996 prohibits smoking in a part of an airport in which there is a sign bearing the words 'No-Smoking'. While designated smoking rooms are permissible, these have been removed from Australian airports. The Sydney Airport Corporation Limited for example, states that its policy is to "accommodate the needs of smokers by providing designated smoking areas that are located outside."[9]
15.7.2 Australian Capital Territory
Smoking is banned in all enclosed public places in the ACT under the Smoking (Prohibition in Enclosed Public Places) Act 2003.[10] All hospitality venues including bars, nightclubs and licensed clubs became smokefree as of 1 December 2006. (Smoking was banned in most enclosed public places, including the dining areas of restaurants and cafes, under 1994 legislation.[11]) Smoking restrictions apply to all substantially enclosed (75% or more) public places. The Act requires the occupier of the premises to take reasonable steps to prevent smoke from entering no-smoking areas, including any neighbouring premises. This may require that smoking not occur in some outdoor (unenclosed or enclosed) public places, such as areas near to windows, doorways and air intakes. However, there are no provisions in the Act that ban smoking in outdoor areas, unless the outdoor areas are deemed to be enclosed.
15.7.2.1 Enclosed public space in the ACT
The Smoking (Prohibition in Enclosed Public Places) Regulation 2005[12] sets out what constitutes an 'enclosed' public place in the ACT.
A public space means a place to which the public or a section of the public has access:
- by payment, membership of a body or otherwise or
- by entitlement or permission.
Examples of public places include:
- business premises, including professional, trade and commercial premises
- a cinema or theatre
- a club, hotel or motel
- a community centre, hall or public library
- government premises
- a hostel or nursing home
- a place of worship
- a public transportation vehicle (including, a bus, taxi or boat)
- a restaurant or cafeteria
- a school, college or university
- a shopping centre, mall or plaza
- sporting or recreational premises.[13]
To be considered 'enclosed', a public place (or part of a public place) must have an overhead cover and be 75% or more 'enclosed'.126 A public place is 75% or more 'enclosed' if the open area of the walls and overhead cover of the public place opens directly to the outside air and is calculated at 25% or less than the total notional area of the public place. A public place that is located inside another public place that is enclosed, such as a food court inside an enclosed shopping mall, is enclosed.
15.7.3 New South Wales
Smoking is banned in enclosed public areas under the Smoke Free Environment Act 2000[14] (The Act). On 2 July 2007 smoking was banned in all substantially enclosed licensed premises. This requirement was enacted by the Smoke Free Environment Amendment Act 2004127 and the Smoke-free Environment Amendment (Enclosed Places) Regulation 2006128 which provided for three incremental stages in the lead up to a total smoking ban in enclosed public areas of licensed premises. These amendments have been integrated into the Smoke-free Environment Act 2000 and Smoke-free Environment Regulation 2000.[15]
15.7.3.1 Smoke-free Environment Act 2000 (NSW)
In October 2004, the then NSW Premier Bob Carr announced that smoking in indoor areas of licensed premises would be phased out by July 2007.129 All enclosed areas of hotels, clubs and nightclubs that are open to the public must be completely no-smoking, and all areas of Star City Casino with the exception of private gaming rooms must also be no-smoking.[16] There are no other exceptions.
Smokefree areas
The Act defines a smokefree area as any enclosed public place, but does not include an exempt area. Examples of places that are smokefree if they are enclosed public places include:
- shopping centres, malls and plazas
- restaurants, cafes, cafeterias, dining areas and other eating places
- schools, colleges and universities
- professional, trade, commercial and other business premises
- community centres or halls and places of public worship
- theatres, cinemas, libraries and galleries
- trains, buses, trams, aeroplanes, taxis and hire cars, and ferries and other vessels
- hostels (other than residential accommodation)
- motels (other than residential accommodation)
- fitness centres, bowling alleys and other sporting and recreational facilities
- child care facilities
- hospitals
- casinos (other than a casino private gaming area or residential accommodation)
- hotels (other than residential accommodation)
- clubs (other than residential accommodation)
- nightclubs.
Under section 10 of The Act occupiers have a duty to prevent the spread of smoke from smoking areas to no-smoking areas. The occupier must take all reasonable steps to prevent smoke caused by smoking in unenclosed areas from penetrating smokefree areas.
15.7.3.2 Smoke-free Environment Regulation 2000 (NSW)
The object of this regulation is to prescribe guidelines to determine what an enclosed public place is and when a covered outside area is considered to be substantially enclosed.128
A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces of the public place is more than 75% of its total notional ceiling and wall area. In determining the total area of the ceiling and wall surfaces, any door, window or moveable structure that is, or is part of, a ceiling or wall is taken to be closed whether or not the door, window or structure is open unless (in the case of a door or window) it is locked fully open and the total area of all such doors and windows do not make up more than 15% of the total notional ceiling and wall area.
If an occupier includes doors or windows in the calculation of a substantially enclosed space, then if smoking is allowed they must keep those doors or windows locked fully open for the entire hours of operation.
15.7.3.3 Smoking in cars in New South Wales
On 22 April 2008, the New South Wales government released a discussion paper which proposed that smoking be banned in cars if a child under the age of 18 years is present.130
15.7.4 Northern Territory
Under the Tobacco Control Act 2002[17], smoking is banned in all enclosed public places, enclosed workplaces, food service and dining areas, and entrances/doorways accessing public buildings. There is a partial ban on smoking inside licensed premises. Licensed premises include clubs, pubs, hotels, licensed roadhouses and casinos.131 The most recent smoking restrictions were introduced in phases between 1 January 2003 and 31 May 2003.132
15.7.4.1 Smokefree areas in the Northern Territory as of 1 January 2003
The following areas became smokefree in the Northern Territory on 1 January 2003:
- indoor eating places, including licensed restaurants and food service and dining areas in hotels, clubs and casinos
- shops, shopping centres, plazas, malls, including enclosed car parks
- community building such as theatres, halls, libraries, museums and government buildings
- all forms of public transport and sheltered common areas such as waiting and ticketing areas, including train platforms, designated taxi ranks, bus stops and ferry terminals, there are exceptions for bus stops that consist of a post at the roadside and rental car companies may set their own policies
- within two metres of entrances to all non domestic buildings and three metres from air-conditioning inlets, this rule does not apply to alfresco dining areas or beer gardens that allow smoking
- dancefloors
- common rooms and thoroughfares in group accommodation including nursing homes and hotels, private rooms within the group accommodation may allow smoking, guest accommodation venues may also allow smoking in private rooms and are not obliged to designate any rooms as no-smoking
- areas of common access such as toilets, lobbies, staff rooms, corridors, thoroughfares or stairways
- childcare centres, schools, and other education facilities, including buildings and grounds, an outdoor area that is not visible to children can be designated as a staff smoking area
- 50% of fixed seating in sporting venues and other outdoor events (such as racetracks, grandstands, showgrounds) must be no-smoking (all common areas and dining areas must also be no-smoking), smoking is allowed on embankments/hills used by an audience provided there is no fixed seating.
15.7.4.2 Smokefree areas in the Northern Territory as of 31 May 2003
The following additional areas became smokefree on 31 May 2003:
- enclosed workplaces, including staff rooms and work vehicles, large structures with oversized roller doors as walls that are left open during working hours may allow smoking
- domestic premises used as a workplace if the public or clients can access the workplace or another employee works there
- licensed premises must provide 'equal amenity' for non-smokers, 'equal amenity' means the no-smoking areas must be equally attractive and provide the same type of service as the smoking areas
- venues with more than 25 gambling machines (pokies), half of the machines must be no-smoking, venues with less than 25 gambling machines, there is no specific requirement for no-smoking machines.
15.7.4.3 Enclosed area in NT
Enclosed area is defined in NT legislation as "an area with a ceiling or roof that is substantially enclosed by walls, windows, blinds, awnings, curtains or other materials except for doorways and passageways."132 p3
15.7.5 Queensland
Smoking is restricted under the amended Tobacco and Other Smoking Products Act 1998.[18] Smoking in enclosed workplaces and public areas has been banned since 2002. An indoor smoking ban at dining areas of liquor licensed premises was also put in place at this time. A review of the tobacco laws was carried out in 2004. The review informed the drafting of new tobacco laws under the Tobacco and Other Smoking Products Amendment Act 2004[19] which was passed by Queensland Parliament on 11 November 2004. The laws put in place the most comprehensive smoking bans in Australia. Smoking was banned in many outdoor areas from 1 January 2005, and at outdoor eating or drinking places and in enclosed areas of liquor licensed premises from 1 July 2006, including all areas around poker machines.
15.7.5.1 Areas that are exempt from the Queensland smoking ban
Areas in Queensland that are not required to be smokefree include:
- residential premises, other than a part of residential premises being used for carrying on a business while one or more persons who do not reside at the premises are present, such as an employee
- multi-unit residential accommodation, other than the common areas of the accommodation
- vehicles, unless the vehicle is for business use and there is more than one person in the vehicle
- a premium gaming room (highrollers club)
- a secure facility as defined under the Corrective Services Act 2006
- a person who performs in a theatre or other enclosed place does not commit an offence under this section by smoking during the performance if smoking is part of the performance.
15.7.5.2 Outdoor areas where smoking is restricted in Queensland
From 1 January 2005 the following outdoor public places where people gather as groups, and particularly where children are present, are no-smoking:
- patrolled beaches (smokefree between the flags)
- artificial beaches
- sports stadia that are managed by the Major Sports Facilities Authority
- within 10 metres of outdoor children's playground equipment
- within four metres of a non-residential building entrance. This applies to the entrances of public places such as offices, banks, non-licensed food premises, BYO restaurants, snack bars and cinemas. This does not apply to residential premises (entrances to homes and multi-unit residential accommodation) or liquor licensed premises with a general, club or special (casino) licence or certain outdoor pedestrian malls.
From 1 July 2006 unenclosed eating and drinking areas where food or drink is provided as part of a business must be no-smoking. An outdoor eating or drinking area is any unenclosed area where customers consume food or drink that has been or is able to be provided by the business.133 Food or drink provided by the business means table service or service at a counter with the food or drink taken by customers to the unenclosed area. An outdoor smoking area can be provided as long as no food or drink sold by the business is provided or consumed in the area, and the area is not within four metres of a building entrance. However, pubs, clubs and casinos may set aside designated outdoor smoking areas (DOSA) where only smoking and drinking can occur, provided the area is not serviced. These areas must be under the control of a smoking management plan for the venue.
15.7.5.3 Definition of an enclosed and outdoor area in Queensland
Under Queensland legislation, an area is 'enclosed' if it has a ceiling or roof, and except for doors and passageways, is completely or substantially enclosed. An outdoor area is an area that does not meet the definition of enclosed. Queensland Health advises that when making a decision about whether an area is an outdoor area or an enclosed area the following questions should be considered134:
- Does the area have a roof or ceiling or other solid covering? If the answer is 'no', the area will most likely be an outdoor area as it cannot meet the definition of enclosed. If the answer is 'yes', then further questions need to considered.
- Is the area surrounded by walls or fences or otherwise enclosed? As a general rule, if the area has only one wall, it will most probably not meet the definition of enclosed. If the area has three or more walls, it most probably will meet the definition of enclosed. The materials the walls or fences are made from are also considered. It is not possible to give a more definitive description of enclosed because of the infinite number of building configurations.
- The most important question to consider is: would the average person say the area is enclosed?
15.7.5.4 Guidelines for Designated Outdoor Smoking Areas in Queensland
Liquor licensed premises that hold a general or club licence can designate an outdoor area where only smoking and drinking can occur. Patrons can order their drinks in a different area then take them into the DOSA, and smoke and drink there. A DOSA can be made comfortable for patrons through the use of furniture, lighting or heating, but no form of entertainment may be provided. A number of rules must also be followed135:
- A premise may have more than one DOSA, but the total area of all DOSA must not be more than 50% of the whole outdoor liquor licensed area of the premises.
- Each DOSA must have a buffer around the perimeter, wherever it is next to other parts of an outdoor area that are ordinarily accessed by patrons. A buffer indicates a separation between smoking and no-smoking areas. There are two options for the buffers, either a two metre wide area in which patrons cannot eat, drink or smoke or a 2.1 metre high screen that is impervious to smoke.
- No poker machines can be located in a DOSA.
- Food cannot be taken into or consumed in the DOSA nor can food or drink be served to patrons within the DOSA. Staff can enter the DOSA to clear glasses and empty ashtrays, but they must not take orders from, or serve food or drinks to, patrons.
- It is a legal requirement that the entire remaining outdoor licensed area is no- smoking.
- A smoking management plan must be prepared and implemented for the entire premises.
15.7.5.5 Smoking management plans in Queensland
If a licensed premise chooses to have a DOSA, then a smoking management plan must be prepared. The premise must display a sign in or near the DOSA stating that the plan is available for perusal on request. The plan must136:
- identify the DOSA
- identify the outdoor areas where food is served
- identify the buffers
- state how the licensee will minimise the exposure of staff and patrons to SHS
- describe the training given to staff to ensure the laws and the plan are complied with
- provide for signage in the premises to clearly identify where smoking is or is not allowed.
15.7.6 South Australia
As of 6 December 2004, smoking was banned in South Australia in all enclosed public places, workplaces and shared areas under amendments to the Tobacco Products Regulation Act 1997.[20] A ban on smoking in all indoor dining areas was introduced in January 1999. Smoking restrictions in enclosed licensed hospitality premises were phased in, with a total ban implemented on 1 November 2007. Enclosed areas in all licensed hospitality venues, including pubs, clubs and SkyCity Adelaide are completely no-smoking.
Excluded from the legislation are workplaces that are also residences (such as hostels and nursing homes), a place where a self-employed person works alone, and work vehicles that are only used by one person.137
15.7.6.1 What is meant by shared area in South Australia?
In some residential facilities, for example units and hostels, areas that are used by all tenants are defined as shared areas. For example, the following enclosed shared areas must be smokefree: enclosed stairwells, car parks, foyers, corridors, laundries, kitchens or common rooms.138
15.7.6.2 Enclosed areas in South Australia
From 1 November 2007, in South Australia smoking is no longer permitted in public places, workplaces or shared areas that are more than 70% 'enclosed'. An area is enclosed if it is fully enclosed or partially enclosed by a ceiling/roof and walls such that the combined area of the ceiling (includes shade sails and umbrellas) and wall surface exceeds 70% of the total ceiling/wall area. An area without a ceiling/roof will not be considered enclosed. To be unenclosed, at least 30% of the area must be open and allow the free flow of air.139 Blinds or other moveable structures used to weatherproof outdoor areas may be considered to enclose an area depending on their use. Where blinds or other structures are open, smoking is permitted if their opening results in the area being less than 70% enclosed. Closed blinds or other structures are considered the same as walls and where they enclose more than 70% of the area, smoking is not permitted.
15.7.6.3 Smoking in cars in South Australia
On 31 May 2007, South Australia became the first Australian state to enact a ban on smoking in vehicles when children under 16 are present (Figure 15.1). This ban applies to both the driver and passengers and when the vehicle is either moving or stationary. Police officers and tobacco control officers have the authority to enforce this law by issuing an expiation fee of $75 and the maximum penalty is $200.140
Figure 15.1
Smokefree car education campaign from South Australia
Source: http://www.tobaccolaws.sa.gov.au/Portals/0/GP_SFC_Poster.pdf
15.7.7 Tasmania
In Tasmania, the Public Health Act 1997[21] requires all indoor public places and workplaces to be smokefree. The smokefree areas legislation was extended to include all licensed premises from 1 January 2006. Further restrictions apply to outdoor areas of licensed premises which are serviced, entry points to public buildings, work vehicles where other people are present, and outdoor dining areas.
Under Part 4, Division 1A of the Public Health Act 1997, the following areas must be smokefree:
- an enclosed public place
- an enclosed workplace
- any area not within private premises designated by the occupier of the area as a smokefree area
- any area of an outdoor sporting or cultural venue containing reserved seating
- an area within three metres of an entrance to or exit from any non-domestic building or multiple-use building (when food is consumed in an outdoor dining area at tables provided by the occupier on a street or public place, the smokefree requirement within three metres of an entrance or exit of a building does not apply)
- an area within 10 metres of any air intake for ventilation equipment on or in a multiple-use building or a non-domestic building
- an outdoor dining area where tables are provided, an area consisting of not less than 50% of those tables, grouped together in one part of that dining area
- an outdoor dining area where no tables are provided, an area consisting of not less than 50% of the seating in that dining area, grouped together in one part of that dining area
- work vehicles while being used during the course of employment if another person is present141
- any vehicle if a person under the age of 18 years is inside the vehicle.142
The following are not smokefree areas unless designated as such by the occupier:
- any open deck area of a ship or vessel
- any personal living area of any place providing accommodation for a fee, residential care facility or prison from which smoke drift to any smokefree area cannot reasonably occur
- an outdoor smoking area.
An occupier of an area who requires persons to work in a personal living area that is not a smokefree area must develop and implement procedures to minimise the risk to the health of those persons.
15.7.7.1 Outdoor areas of licensed premises in Tasmania
The Public Health Act 1997 also restricts the areas in Tasmania in which patrons can smoke outdoors at premises such as pubs, clubs and nightclubs that:
- have a licence or permit under the Liquor Licensing Act 1990 and
- where the provision of beverages rather than food is the primary function
An outdoor smoking area:
- must not be serviced, this includes the delivery of beverages and food by staff to patrons
- must either not have a roof, or may have a roof but must not have a perimeter consisting of more than 50% walls or windows (whether open or closed), a roof includes any structure or device, whether fixed or moveable, that prevents or impedes upward airflow
When the Tasmania Department of Health and Human Services considers whether an area has a roof or a perimeter consisting of more than 50% walls and windows several factors are considered. These include the purpose of the wall—does it enclose, divide, support or protect—the height of any walls, the size of the outdoor smoking area, the distance of the outdoor smoking area from any adjacent buildings, the density or permeability of the walls or roof material, the proportion of the outdoor smoking area covered by a roof and the angle (pitch) of the roof.
An outdoor smoking area will generally not be considered to have a roof if at least two-thirds of the roof space is uncovered. However, there will be a requirement for a greater proportion of roof space to be uncovered in small areas where:
- the ceiling height in the outdoor smoking area is less than three metres
- the area is less than ten square metres.
Less restrictive consideration may be given to this requirement if the roof is angled or pitched upwards.143
15.7.7.2 Smokefree cars in Tasmania
On 19 December 2007, Tasmania passed legislation banning smoking in vehicles if a person under the age of 18 years is inside the vehicle. This ban has been effective since 1 January 2008. 142 A police officer or other nominated officer has the authority to enforce the law by issuing a fine of up to 20 penalty units.142
Smoking is also banned in work vehicles used during the course of employment if another person is present.
15.7.8 Victoria
From 1 March 2006, under the amended Tobacco Act 1987[22], smoking was banned in Victoria in most enclosed workplaces. Smoking was also banned from this date at underage music/dance events, including outdoor areas, and covered areas only of train station platforms, trams stops and bus stops.144 From 1 July 2007 smoking was banned in enclosed licensed premises.
15.7.8.1 Exemptions to the workplace smoking ban in Victoria
There are a number of exemptions to the Victorian smokefree workplace legislation which include145:
- residential premises not used for carrying on a business
- a part of a residential premises used for carrying on a business while only persons who reside at the premises are in that part (no non-resident employees or members of the public are present)
- a place of business occupied by the sole operator and which is not for the use of the public
- a vehicle
- personal sleeping or living areas of premises providing accommodation to members of the public for a fee (e.g. hotels) or residential care facilities
- an area in an approved mental health service
- prison cells as well as exercise yards of prisons
- a detention centre established for the purposes of the Migration Act 1958
- highroller rooms at the Crown Casino.
15.7.8.2 Enclosed and outdoor areas in Victoria
'Enclosed' under Victorian legislation means an area, room or a premise that is 'substantially' enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are a) permanent or temporary b) open or closed. 'Substantially' is not defined in the legislation. This means workplaces with large roller doors, even if they are open, are required to be smokefree. It also means the smoking status of an enclosed licensed premise will not change at any time.
Smoking will continue to be permitted in outdoor dining or drinking areas in Victoria. An outdoor dining and drinking area includes a balcony, veranda, courtyard, rooftop, marquee, street, or footpath. Outdoor dining and drinking areas are treated differently to enclosed workplaces and they must be smokefree if they have a roof in place and the total actual area of the wall surfaces exceeds 75% of the total notional wall area. The smoking status of outdoor dining and drinking areas may change depending on the position of the walls and roof. For example, if the walls of a marquee are retracted smoking may be permitted whereas if they are closed smoking may be banned.146
15.7.9 Western Australia
Smoking in enclosed public places has been restricted in Western Australia since March 1999, following the introduction of the Health (Smoking in Enclosed Public Places) Regulations 1999, with a limited number of exemptions. Occupational Safety and Health regulations introduced in July 1997 restricted smoking in enclosed workplaces in WA, but did not specifically apply to patrons attending hospitality venues. The Tobacco Products Control Regulations 2006[23] made under the Tobacco Products Control Act 2006 [24] prohibited smoking in all enclosed public places in Western Australia, including licensed premises from 31 July 2006. Private guest rooms of hotels and residential accommodation are not considered to be public places, although other areas, including corridors, foyers and lobbies of such premises are required to comply with the legislation. There are minimal exceptions to the law which include:
- the international room of the Burswood Casino, provided the room has adequate ventilation
- an actor, artist or other performer who smokes for the purposes of a performance, provided the occupier of the enclosed public place granted prior consent.
15.7.9.1 Defining an enclosed public place in Western Australia
A public place is enclosed if it has roof (impermeable) and the total vertical surface area of the solid material in the walls is more than 50% of the notional vertical surface area of the place. The surface area of walls, or other vertical structures or coverings located under a ceiling or roof as well as those located at or within one metre from the perimeter of a ceiling or roof are to be used to determine if a public place is greater than 50% enclosed. The surface areas of windows, doors and other closable openings must also be included when calculating the percentage of vertical surfaces surrounding a place, regardless of whether they are open or closed. If a public place does not have a roof then it is not enclosed.147 Smoking is permitted in outdoor areas including outdoor areas used for dining.
15.7.9.2 Duty to prevent smoke entering enclosed public places in Western Australia
Unless an enclosed public place has adequate ventilation, the occupier must take reasonable steps to ensure that smoke from a tobacco product does not enter inside the enclosed place. Adequate ventilation is in accordance with the requirements of the Building Code of Australia (BCA) 2006.[25] Reasonable steps may include147:
- closing doors or windows
- designating outdoor smoking areas away from entrances and openings to an enclosed public place (The WA Department of Health recommends no- smoking within at least five metres from entrances and openings.)
15.7.9.3 Breakout areas in Western Australia
The WA Department of Racing, Gaming and Liquor has produced guidelines for occupiers of licensed premises wishing to establish outdoor areas (known as breakout areas) to allow patrons to smoke and consume alcohol within or adjacent to licensed premises.148 A breakout area must be a small area, which forms part of the licensed premises, where smokers may only, and temporarily, smoke and consume liquor. Licensees may need to lodge an application to have an outdoor area approved. Breakout areas are subject to approval of the local government authority. Breakout areas must meet the following criteria:
- no bars or service of liquor in the area
- no music or entertainment in the area
- ashtrays installed and the area regularly cleaned
- smokers are discouraged from remaining in the area longer than is necessary to smoke a cigarette.
15.7.10 Summary of smokefree legislation across Australian states and territories
Table 15.3 provides a timeline of implementation dates of smokefree legislation across all states and territories. Table 15.4 summarises and compares the current (2007) state and territory smokefree laws across different areas and environments.
Table 15.3
Implementation dates of smokefree legislation Australian states and territories.
|
Date |
Legislation * |
Ban or restriction |
|
ACT |
||
|
6 December 1994 |
Smoking (Prohibition in Enclosed Public Places) Act 1994 |
Smoking ban in enclosed public places except for exempt restaurants and licensed premises. "Public place" means a place which the public, or a section of the public, is entitled to use or which is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a body, or otherwise). Examples of "public places" include shopping centres, dining areas, clubs, schools, business premises, community centres, theatres, public transport, multi-unit residential premises and recreational facilities. Smoking permitted by performer during stage show. A "public place" is "enclosed" if it has a ceiling or roof and is, except for doors and passageways, completely or substantially enclosed by walls or windows. |
|
1 December 2006 |
Smoking (Prohibition in Enclosed Public Places) Act 2003
Smoking (Prohibition in Enclosed Public Places) Regulation 2005 |
Smoking ban in enclosed public places: "Public place" is a place to which the public or a section of the public has access, whether—by payment, membership of a body or otherwise or by entitlement or permission. Examples of "public places" include business premises, cinemas, hotels, clubs, community centres, government premises, hospitals, nursing homes, churches, public transport, dining areas, schools, shopping centres and recreational premises. A "public place" is enclosed if it is covered and is 75% or more enclosed. The regulations may exempt an area from the operation of Part 2 of the Act if the premises are occupied by a university or other entity and the area is for scientific research into the effects of smoking. Offence to permit smoke into an enclosed public place from another part of the premises. Offence by a neighbouring occupier to fail to take reasonable steps to prevent smoke from the premises entering an enclosed public place on other premises. |
|
NSW |
||
|
6 September 2000 |
Smoke-free Environment Act 2000 |
Smoking ban in any "smoke-free area" (unless the area is exempt). "Smoke free area" is any place, or part of a place, of a kind described in Schedule 1 that is an enclosed public place. Places described in Schedule 1 include shopping centres, dining areas, schools, business premises, community centres, churches, theatres, libraries, public transport, motels, recreation centres, child care facilities and hospitals. A "public place" is a place or vehicle that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise). Exempt places include casinos and licensed premises (other than part of the premises which constitutes a dining area, while that part is being used as a dining area). Smoking permitted by performers in theatre or other performance places if smoking is a necessary part of the performance. |
|
4 October 2002 |
Smoke-free Environment Regulation 2000 |
A smokefree area must be separated from a smoking permitted area by a barrier to ensure that a space of at least 1.5 metres separates them. |
|
3 January 2005 |
Smoke-free Environment Act 2000 |
Smoking ban in any dining area and at any counter at which drinks and food are served. A non-smoking room must be available in bars, gaming rooms or recreational rooms which have more than one room. |
|
4 July 2005 |
Smoke-free Environment Act 2000 |
Smoking room or area in clubs, hotels, nightclubs and clubs must not exceed 50% of the total area of the combined drinking, gaming and recreation area in the venue. |
|
3 July 2006 |
Smoke-free Environment Act 2000 |
Smoking room or area in clubs, hotels, nightclubs and clubs must not exceed 25% of the total area of the combined drinking, gaming and recreation areas in the venue. |
|
2 July 2007 |
Smoke-free Environment Amendment Act 2004
Smoke-free Environment Regulation 2000 |
Smoking ban in all enclosed (including substantially enclosed) areas of hotels, clubs and nightclubs open to the general public. Smoking ban on all enclosed areas of casinos except for private gaming rooms. A public place is substantially enclosed if the total area of the ceiling and wall surfaces of the public place is more than 75% of its total notional ceiling and wall area. |
|
Smoke-free Environment Act 2000 |
In smokefree areas where smoking is elsewhere allowed, reasonable steps must be taken to prevent smoke penetrating the smokefree area. |
|
|
Northern Territory |
||
|
1 January 2003 |
Tobacco Control Act |
Smoking ban in any "smoke-free area". "Smoke-free area" includes an "enclosed public area", "enclosed workplace area", outdoor public venue, food service area, public transport, public transport area, shared accommodation, educational facility, "entrance area" and air-conditioning inlet area. Smokefree area does not include domestic or "exempt" areas. Smoking not prohibited by a performer in a theatrical performance if necessary for the purposes of the performance. "Enclosed public area" means a public area with a ceiling or roof which (except for doorways and passageways) is completely or substantially enclosed by walls, windows, blinds, curtains or other objects, materials or things. "Enclosed workplace area" means a workplace with a ceiling or roof and which (except for doorways or passageways) is completely or substantially enclosed by walls, windows, blinds, curtains or other objects, materials or things, but does not include an area of the business which is in or on domestic premises that is not used or intended to be used by members of the public or employees of the business. "Entrance area" means an area within two metres of a door, window or other opening that opens into or onto an enclosed public area or an enclosed workplace area. |
|
Tobacco Control Regulations (Part 2, r. 9 – r.15A) |
Smoking permitted in designated areas of:
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|
31 May 2003 |
Tobacco Control Regulations |
Smoking permitted in designated areas of:
|
|
Queensland |
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|
31 May 2002 |
Tobacco and Other Smoking Products Act 1998 |
Smoking ban in any "enclosed place", subject to the following exceptions:
Smoking permitted by a person performing in a theatre or other enclosed place during the performance if smoking is part of the performance. "Enclosed" means having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed whether permanently or temporarily. In vehicles, means having a ceiling or roof and, except for doors and exits, completely or substantially enclosed, whether permanently or temporarily. "Public place" means a place that the public is entitled to use, is open to the public or is used by the public (whether or not on payment of money). |
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1 January 2005 |
Tobacco and Other Smoking Products Act 1998 |
Smoking ban:
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|
30 September 2005 |
Tobacco and Other Smoking Products |
Smoking ban:
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|
1 July 2006 |
Tobacco and Other Smoking Products Act 1998 |
Smoking ban in
Liquor licensed premises that hold a general or club liquor licence can choose to have a Designated Outdoor Smoking Area (DOSA), where only smoking and drinking can occur. A DOSA can be no more than 50% of the whole licensed outdoor area of the premises. An area of at least two metres must separate the non smoking and smoking areas. A Smoking Management Plan must be prepared by premises with a DOSA. |
|
South Australia |
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Unable to retrieve pre 2003 Acts/amendments electronically |
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6 December 2004 |
Tobacco Products Regulation Act 1997
Tobacco Product Regulations 2004 |
Smoking ban in all enclosed public places, workplaces and shared areas. Smoking ban applies one metre from all hospitality service bars/counters. Licensed premises with two or more bar rooms must have one bar room designated as non-smoking. Licensed premises with one bar room must have at least 50% of their bar room floor space designated as non-smoking. At least 75% (until 31 October 2005) and 50% (until 31 October 2007) of all gaming machines are to be designated as non-smoking. "Public area" or "public place" means an area or place that the public, or a section of the public, is entitled to use or that is open to, or used by, the public or a section of the public (whether access is unrestricted or subject to payment of money, membership of a body or otherwise). A place or area is "enclosed" if it is fully enclosed or is at least partially covered by a ceiling and has walls such that the total area of the ceiling and wall surfaces exceeds 70% of the total notional ceiling and wall area. |
|
31 May 2007 |
Tobacco Products Regulations Act 1997 |
Smoking in ban in cars containing children (defined as under 16 years of age). |
|
1 November 2007 |
Tobacco Products Regulations Act 1997 |
Smoking ban in all "enclosed" areas (includes indoor and outdoor) of pubs, clubs and the casino. |
|
Tasmania |
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|
28 April 2000 |
Public Health Act 1997 |
Smoking ban in theatres and cinemas (unless smoking is part of performance) |
|
3 September 2001 |
Public Health Act 1997 |
Smoking ban in any enclosed public places and workplace, outdoor sporting or cultural venue with reserved seating, any area within three metres of an entrance to or exit from a building, within 10 metres of any ventilation equipment in a building, reasonable area of a bar. A "public place" includes a place to which the public ordinarily has access, whether or not by payment or invitation (definition of "public place" effective from 1 February 1998). An "enclosed public place" means a place for the use of the public which has a ceiling or roof; and except for doors and passageways, is completely or substantially enclosed by walls or windows (definition of "enclosed public place" effective from 1 February 1998). Smoking not prohibited in:
Smoking ban in vehicles while being used in the course of employment if another person is present. Any non smoking area of licensed premises must be of equal amenity to the smoking area. |
|
1 January 2005 |
Public Health Act 1997 |
Smoking ban in nightclubs, cabarets, gaming areas. In outdoor dining areas where tables are provided, smoking ban in an area of not less than 50% of those tables, grouped together in one part of that dining area. Where no tables are provided, areas consisting of not less than 50% of the seating in the dining area. |
|
1 January 2006 |
Public Health Act 1997 |
Smoking ban in licensed venues and nightclubs. Smoking ban in outdoor drinking and dining areas unless the area is designated as an "outdoor smoking area". An outdoor smoking area may only be on premises where the provision of beverages rather than food is the primary function, it must not have a roof or, if it has a roof, a roof a perimeter where not more than 50% of the perimeter consists of walls and widows (whether open or closed). Food and beverages are not permitted to be served or consumed in approved smoking area. A door that is within three metres of the perimeter of the approved smoking area must not be open except while a person is entering or exiting the premises and a window to the licensed premises must be open if that window is in the approved smoking area or within three metres of it the smoking area. Any smoking area of an outdoor dining area must be of equal amenity to a non-smoking area. |
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1 January 2008 |
Public Health Act 1997 |
Smoking ban in vehicles containing persons less than 18 years of age. |
|
Victoria |
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1 July 2001 |
Tobacco Act 1987 |
Smoking ban in all enclosed restaurants, cafes and the dining areas of hotels and licensed clubs. "Enclosed " in relation to an area or premises, means an area that is, or premises that are, except for doorways, passageways and internal wall openings, completely or substantially enclosed by a solid permanent ceiling or roof and solid permanent walls or windows, whether the ceiling, roof, walls or windows are fixed or movable and open or closed. |
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1 November 2001 |
Tobacco Act 1987 |
Smoking ban in shopping centres. |
|
1 September 2002 |
Tobacco Act 1987 |
Smoking ban in casino, except in designated areas. Smoking ban in gaming areas/rooms of licensed premises. Smoking ban in all bingo centres and bingo areas (while bingo is being played). Requirement for multi-roomed licensed premises to provide a smoke-free room at any time that two or more rooms are open to the public. |
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1 March 2006 |
Tobacco Act 1987 |
Smoking ban in enclosed workplaces but does not apply to residential premises, other than a part of the premises being used for carrying on a business while one or more person who does not reside at the premises is present, licensed premises, outdoor dining or drinking areas, a casino, a vehicle, sole operator businesses that are not for the use of members of the public, personal sleeping or living areas of paid accommodation or residential care facilities, areas approved under the Mental Health Act 1986, the Corrections Act 1986 or the Migration Act 1958. Smoking ban in covered train platforms, tram and bus stops and underage music/dance events. "Enclosed" means an area, room or premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are—permanent or temporary, open or closed |
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1 July 2007 |
Tobacco Act 1987 |
Smoking ban in enclosed licensed premises. Smoking ban in outdoor dining or drinking area if the area has a roof and walls in place and the total actual area of the wall surfaces exceeds 75% of the total notional wall area. Smoking ban in the casino, except for declared high roller rooms. |
|
Western Australia |
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29 March 1999 |
Health (Smoking in Enclosed Public Places) Regulations1999 |
Smoking ban in enclosed public places except bar or lounge areas, allocated areas in restaurants (where meals are not served or consumed), cabarets or nightclubs and gaming areas. Smoking prohibited in all but two enclosed public places located in the same premises at any one time. Smoking permitted if person is a performer who smokes for the purposes of a performance. An "enclosed public place" is a place that has, whether permanently or temporarily, a ceiling or a roof and walls, sides or other vertical coverings so that when the public place's existing closable openings are closed, the public place is completely or substantially enclosed. A "public place" is a place or vehicle that the public, or a section of the public, is entitled to use or is open to, or is being used by, the public, or a section of the public, whether on payment of money, by virtue of membership of a club or other body, by invitation or otherwise. |
|
Health (Smoking in Enclosed Public Places) Regulations 1999 |
If smoking is prohibited in an enclosed public place but not in another part of the premises, the occupier must, unless the place has adequate ventilation, take reasonable steps to prevent smoke caused by smoking in the other part of the premises from penetrating the place. |
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|
1 January 2000 |
Health (Smoking in Enclosed Public Places) Regulations 1999 |
Smoking ban on 50% of the floor space in cabarets, nightclubs and gaming areas. Size restrictions apply where two bar or lounge areas are set aside for smoking in certain premises. |
|
1 July 2004 |
Health (Smoking in Enclosed Public Places) Regulations 1999 |
Smoking ban on 80% of floor space in cabarets and nightclubs. |
|
1 November 2005 |
Health (Smoking in Enclosed Public Places) Regulations 2004 |
Smoking limited to one room only in all licensed premises. Smoking ban in all enclosed places in Burswood Casino except the International Room. |
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31 July 2006 |
Tobacco Products Control Regulations 2006 |
Smoking ban in all enclosed public places, including licensed premises (except Burswood Casino's International Room). An "enclosed public place" is a public place with a ceiling or roof and is greater than 50% enclosed by walls or other vertical structures or coverings. |
* References to legislation are to legislation at the relevant "point in time". Where identified, the sections or regulations have since "expired" or have been "amended" or "repealed" following further legislative development. To identify current legislative or regulatory provision relevant to ban or restriction refer to current Act or Regulations.
Table 15.4
Summary of smokefree legislation across Australian states and territories*
|
ACT |
NSW |
NT |
QLD |
SA |
TAS |
VIC |
WA |
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|
Name of act |
Smoking (Prohibition in Enclosed Public Places) Act 2003i and the Smoking (Prohibition in Enclosed Public Places) Regulation 2005ii |
Smoke Free Environment Act 2000iiiand the Smoke-free Environment Regulation 2000iv |
Tobacco Control Act 2002v and the Tobacco Control Regulationsvi |
Tobacco and Other Smoking Products Act 1998vii |
Tobacco Products Regulation Act 1997viii |
Public Health Act 1997ix |
Tobacco Act 1987x |
Tobacco Products Control Regulations 2006xi made under the Tobacco Products Control Act 2006xii |
|
|
Enclosed public places |
Part 2 smoking prohibited in enclosed public places |
Part 2.6.2 |
Part 2.7.1 |
Part 2B.26R person must not smoke in enclosed place |
Part 4.46 smoking banned in enclosed public places, workplaces and shared areas |
Part 4.1A.67B.1 A smokefree area is any of the following: |
Part 2.5A.1 a person must not smoke in an enclosed workplace |
Regulation Part 3.2.10.1 person must not smoke in an enclosed public place |
|
|
Smoke drift / spread of smoke |
Part 2.8A offence to permit smoke into enclosed public place from another part of premises Part 2.9 offence (by neighbouring occupier) to fail to take reasonable steps to prevent smoke from neighbouring premises entering an enclosed public place on other premises |
Part 2.10.1 must take reasonable steps to prevent smoke caused by smoking in the other parts of those premises from penetrating the smokefree area Part 2.10.2 occupier of other parts of the premises in which smoking is allowed must take reasonable steps to prevent smoke from penetrating the smokefree area |
Regulation Part 3.2.13 occupier must, unless the place has adequate ventilation, take reasonable steps to ensure that smoke from a tobacco product does not enter the place |
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|
Vehicles |
Part 4C.48 smoking in motor vehicle if child present |
Part 4.1A.67H person must not smoke |
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|
Outdoor spaces |
Part 2.7.1 |
Part 2C.26X person must not smoke at outdoor eating or drinking place |
Part 4.1A.67B.1 (d) any area of an outdoor sporting or cultural venue containing reserved seating |
Part 2.5C.1 person must not smoke in an outdoor dining or drinking area if |
|||||
|
Exemptions |
Part 2.14 if the premises are occupied by a university and the area is for scientific research into the effects of smoking |
Part 2.7 smoking is permitted during a theatre performance by an actor |
Part 2.9.3 theatrical performance and did not continue to smoke for longer than was necessary for the purposes of the performance |
Part 2B.26R.2 |
Part 1.4.1 |
Part 4.1A.67B.2 |
Part 2.5A.2 |
Regulation Part 3.2.10.2 does not apply to the International Room at the premises at Burswood Island |
|
|
Definitions |
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|
Public place |
Dictionary. a place to which the public or a section of the public has access, whether by payment, membership of a body or otherwise or by entitlement or permission a list of (examples of public places are also included in the Dictionary for the act) |
Part 1.4 a place or vehicle that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise) (examples of public places are also included in Schedule 1of the act) |
Part 1.5 means a place, or a part of a place, that is used or is intended to be used by members of the public |
Dictionary. means a place, or a part of a place, that is used or is intended to be used by members of the public |
Part 1.4.1 an area or place that the public, or a section of the public, is entitled to use or that is open to, or used by, the public or a section of the public (whether access is unrestricted or subject to payment of money, membership of a body or otherwise) |
Part 1.3 includes a place to which the public ordinarily has access, whether or not by payment or invitation |
Part 1.3 includes a place to which the public ordinarily has access, whether by payment or not, but does not include a part of a place to which the public has access by reason only of the carrying on of a trade, business or profession on or in that place |
Glossary. place or vehicle that |
|
|
Enclosed |
Regulation Part 6 premise must have overhead cover and be 75% or more enclosed |
Regulation Part 8 total area of the ceiling and wall surfaces (the total actual enclosed area) of the public place is more than 75 per cent of its total notional ceiling and wall area |
Part 1.5 has a ceiling or roof and (except for doorways and passageways) is completely or substantially enclosed by walls, windows, blinds, curtains or other objects, materials or things |
Dictionary. has a ceiling or roof and (except for doorways and passageways) is completely or substantially enclosed by walls, windows, blinds, curtains or other objects, materials or things |
Part 1.4.3 fully enclosed or is at least partially covered by a ceiling and has walls such that the total area of the ceiling and wall surfaces exceeds 70% of the total notional ceiling and wall area |
Part 1.3 having a ceiling or roof; and being completely or substantially enclosed by walls or windows, except for doors and passageways Part 1.3A outdoor smoking area - does not have a roof or has a roof and a perimeter where not more than 50% of the perimeter consists of walls and windows (whether open or closed) |
Part 1.3 an area, room or premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are permanent or temporary or open or closed
Part 2.1.5C.1 |
Regulation Part 3.1.8 covered by a roof or a part of a roof and the total vertical surface area of the solid material in the walls is more than 50% of the notional vertical surface area |
|
* Unless otherwise stated the referenced sections refer to the State or Territory act
i http://www.austlii.edu.au/au/legis/act/consol_act/sieppa2003423/
ii http://www.legislation.act.gov.au/sl/2005-21/current/pdf/2005-21.pdf
iii http://www.legislation.nsw.gov.au/viewtop/inforce/act+69+2000+FIRST+0+N/
iv http://www.legislation.nsw.gov.au/viewtop/inforce/subordleg+556+2000+FIRST+0+N/
vii http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobacoPrPrSuA98.pdf
ix http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/
[9]http://www.sydneyairport.com.au/SACL/Terminal+Information/T1+International+Terminal/Services+and+Amenities/default.htm
[13] An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears
[16] Smoking will be permitted in the private gaming areas at Star City Casino, not including areas used substantially for gaming machines (pokies). This exception will be reviewed every 12 months to maintain parity with other state casinos.
[17]http://notes.nt.gov.au/dcm/legislat/legislat.nsf/d989974724db65b1482561cf0017cbd2/f4acccacbb485159692570e0000d7ff2?OpenDocument
[18] Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobacoPrPrSuA98.pdf
[19] Available from: http://www.austlii.edu.au/au/legis/qld/num_act/taospaa2004n47446/
[22]http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/a12f6f60fbd56800ca256de500201e54/70C3E26E23FF3A60CA257306001B4EFB/$FILE/87-81a063.pdf
[23]http://www.slp.wa.gov.au/statutes/regs.nsf/3b7e5f26432801b348256ec3002c128c/ab250202ff8e4cba482571b90025e796/$FILE/Tobacco%20Products%20Control%20Regulations%202006.PDF
[24]http://www.slp.wa.gov.au/statutes/swans.nsf/5d62daee56e9e4b348256ebd0012c422/6afc657a7ee388f8482571540025df99/$FILE/Tobacco%20Products%20Control%20Act%202006.PDF
[25]Adequate ventilation is either mechanical ventilation complying with AS 1668.2 and AS/NZS 3666.1 or natural ventilation as prescribed in the BCA. The BCA can be viewed here: https://www.abcb.gov.au/index.cfm?fuseaction=Welcome
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