Last updated: October 2016
Suggested citation: Grace, C. 15.7 Legislation to ban smoking in public spaces. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2016. Available from: http://www.tobaccoinaustralia.org.au/chapter-15-smokefree-environment/15-7-legislation
Authors who contributed to previous versions of this section include Barnsley, K., Freeman, B., Purcell, K., Scollo, MM., Tumini, V., & Winstanley M.
Every state and territory bans smoking in enclosed public places. Indoor environments such as public transit, office buildings, shopping malls, schools and cinemas are smokefree across the country. There is, however, great variability between jurisdictions in terms of exemptions from indoor bans. Regions also have different approaches for managing smoking in outdoor areas. A detailed overview of these important variations between each state and territory is provided in this section. See also Table 15.7.1 for a summary of the state and territory smokefree laws. Local governments in a number of states have also enacted local laws to ban smoking in outdoor areas not covered by state legislation.
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While smokefree environments fall primarily under state and territory control, there are three areas of Commonwealth regulation. Regulations made under the Air Navigation Act 1920 (Cth)i have prohibited smoking on all domestic flights since 1987.ii From 1996, the Air Navigation Regulations 1947 (Cth) were amended to extend the ban on smoking in aircraft to all international flights operated by Australian airlines.iii
Smoking on board buses registered under the Interstate Road Transport Act 1985 (Cth) is banned at all times while passengers are on board, pursuant to regulation 51B of the Interstate Road Transport Regulations 1986 (Cth).iv
Regulations made under the Airports Act 1986 (Cth)v provide that the operator of a regulated airport may decide that an area of the airport is to be a no-smoking area.vi The airport operator must put up a prominent sign bearing the words 'No-smoking' in any no-smoking area. Designated smoking rooms are therefore legally permissible in most Australian airports, but in practice have been removed from Australian airports. The Sydney Airport Corporation Limited smoking policy, for example, states that smoking is not permitted inside the terminal, and those who choose to smoke outside the terminals are requested 'to be mindful of the comfort of others and do so away from doorways and public waiting areas'.vii
Smoking is banned in enclosed public places in the Australian Capital Territory under the Smoke-Free Public Places Act 2003 (ACT) ('the Smoke-Free Public Places Act').1 To be considered 'enclosed', a public place must have an overhead cover, and be 75 per cent or more enclosed. Smoking was first banned in most enclosed public places including dining areas of restaurants and cafes under 1994 legislation,viii making the Australian Capital Territory the first Australian jurisdiction to ban smoking in restaurants.2 The Australian Capital Territory was also the first jurisdiction to ban smoking in enclosed areas of pubs and clubs when it enacted a partial ban in these areas four years later. A complete ban on smoking in enclosed areas of pubs and clubs came into effect on 1 December 2006. Since 9 December 2010, smoking has been banned in outdoor eating and drinking places (other than in designated outdoor smoking areas of licensed premises) and at under-age functions. The Smoke-Free Public Places Act also requires occupiers of premises to take reasonable steps to prevent smoke from entering no-smoking areas, including neighbouring premises. This may require that smoking not occur in some outdoor public places, such as areas near to windows, doorways and air intakes. Smoking is also banned in all enclosed areas of the Canberra casino. The Australian Capital Territory, South Australia and Tasmania are the only Australian jurisdictions to have banned smoking in all enclosed areas of casinos including high-roller rooms.
A public place means a place to which the public or a section of the public has access:
Examples of public places include:
To be considered 'enclosed', a public place (or part of a public place) must have an overhead cover and be 75 per cent or more enclosed.xi A public place is '75 per cent or more enclosed' if the area that opens directly to the outside air is 25 per cent or less of the total closed and open area of the walls and overhead cover.xii
See Table 15.7.1 for a summary of smokefree legislation implementation dates in the Australian Capital Territory.
From 9 December 2010 smoking was banned in all outdoor eating and drinking places in the Australian Capital Territory apart from designated outdoor smoking areas at licensed premises.4 Smoking is banned only during periods where food or drink is being offered or provided, consumed or cleared. An 'outdoor eating and drinking place' is defined as a public place where tables and chairs are provided for customers to consume food purchased from an on-site service, or any liquor licensed outdoor area.xiii Liquor licensed venues such as pubs, clubs, taverns and bars may designate part of their licensed outdoor area as a designated outdoor smoking area (DOSA).xiv A DOSA must be separated from non-smoking outdoor areas by a non-permeable wall, or a four metre wide buffer zone. No food or drink service may be provided and no food may be eaten within a DOSA. In addition, the occupier of the licensed premises must maintain a smoking management plan and take reasonable steps to prevent smoke from the DOSA entering any other part of the outdoor eating or drinking place.
In October 2011 the Australian Capital Territory Legislative Assembly passed legislation banning smoking in cars when children under 16 years of age are present. This legislation came into effect on 1 May 2012.xv
In March 2016, the ACT Parliament passed legislation which enables the Chief Minister and the responsible Minister to jointly declare public areas or events in the ACT 'smoke-free'.xvi The ACT Government can therefore create new smoke-free areas without the need to pass new legislation through Parliament.
On 26 August 2016, the ACT Government exercised this new power, and declared all children’s play equipment in play spaces managed by the ACT Government (and all areas within 10 metres of such play equipment) to be smoke-free.xvii This declaration came into effect on 7 September 2016.
Smoking is banned in 'enclosed public places' in New South Wales under the Smoke-free Environment Act 2016 (NSW) ('Smoke-free Environment Act')5 and Smoke-free Environment Regulations 2016 (NSW) ('Smoke-free Environment Regulation').6 This includes shopping centres, dining areas, schools, business premises, community centres, churches, theatres, libraries, public transport, motels, recreation centres, childcare facilities and hospitals. Smoking was banned in all 'substantially enclosed' licensed premises in New South Wales from 2 July 2007 after being phased in from 2005 to 2007. The phase-in period involved a ban on smoking in 50% of the enclosed area of hotels, nightclubs and clubs in 2005. The ban was increased to 75% of the total enclosed area of licensed venues in 2006 and finally in 2007 a total ban on smoking in all enclosed (including substantially enclosed) areas of licensed premises was imposed.xviii Smoking is permitted in private gaming rooms of casinos.xix
The Smoke-free Environment Act was further amended in August 2012 to introduce laws banning smoking in various ‘outdoor public places’ (see below for further detail).xx
The Smoke-free Environment Act states that every 'enclosed public place' (other than an exempt place) is a 'smokefree area'.xxi Examples of places that are smokefree if they are enclosed public places include:
Under section 10 of the Smoke-free Environment Act, occupiers of premises where smoking is allowed must take reasonable steps to prevent smoke from penetrating any smokefree areas.
The Smoke-free Environment Act stipulates that a 'public place' means a place or vehicle that the public, or a section of the public, is entitled to use, or that is open to the public or a section of the public, whether by payment of money, by virtue of membership of a club or body, or otherwise.xxiii A public place is considered to be 'enclosed' if it has a roof or ceiling and is completely or substantially enclosed.xxiv The Smoke-free Environment Regulation sets out guidelines for determining what an enclosed public place is, and when a covered outside area is considered 'substantially enclosed'. A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces is more than 75 per cent of the total notional ceiling and wall area.xxv The Smoke-free Environment Regulation provides further detail regarding how to calculate the ‘total notional ceiling and wall area’.xxvi
See Table 15.7.1 for a summary of smokefree legislation implementation dates in New South Wales.
As noted above, the Smoke-free Environment Act was further amended in August 2012 to introduce laws banning smoking in various ‘outdoor public places’, including:
Most of these laws came into operation on 7 January 2013; however the ban on smoking in commercial outdoor dining areas did not come into effect until 6 July 2015. In addition, the 4 metre law did not apply to licensed premises and restaurants until 6 July 2015.
An outdoor area will be considered a ‘commercial outdoor dining area’ if the area is an outdoor public place that is also:
The ban on smoking in commercial outdoor dining areas does not prevent a licensed premises or restaurant from creating a designated outdoor smoking area. However, such spaces must not be located within 4 metres of the seated dining area, The area must also be designated as not being for the consumption of food by the display of signs which comply with the regulations, and the occupier must take reasonable steps to ensure the consumption of food does not occur in the area.xxix
Smoking in a car when a child under 16 years of age is present was banned in New South Wales from 1 July 2009 under section 30 of the Public Health (Tobacco) Act 2008 (NSW).7
Since 2007 numerous local councils in New South Wales have implemented smoking bans in outdoor areas under local laws or policy. As at 30 June 2011, 59 per cent of New South Wales local councils (89 out of 152) had banned smoking in one or more outdoor areas, compared to 28 in 2007. The most common outdoor areas covered by smoking bans include children's playgrounds, sporting fields, swimming pools and near council buildings.8
Under the Northern Territory's Tobacco Control Act 2002 9 xxx and Tobacco Control Regulations, smoking is banned in enclosed public areas, enclosed workplaces, outdoor public venues, food service areas, public transport, public transport areas, entrance areas, air conditioning inlet areas, outdoor eating and drinking areas and voluntarily declared areas. From 2 January 2010, licensed venues and substantially enclosed areas were included in the ban. As of 2 January 2011, smoking was banned at outdoor eating and drinking areas. Licensed premises are covered by the ban, but these venues may provide an outdoor smoking area (OSA) that makes up no more than 50 per cent of the total outdoor eating and drinking area. The OSA must be separated from the smokefree portion of the outdoor area, and no entertainment may be provided within an OSA. Outdoor public venues that do not serve food may also designate a smoking area.
The following areas became smokefree in the Northern Territory on 1 January 2003:
The following additional areas became smokefree on 31 May 2003:
In July 2008 the Northern Territory Government announced amendments to the legislation to end the exemption for smoking in enclosed licensed premises. The amendments to the Tobacco Control Regulations meant smoking was banned within licensed venues with effect from 2 January 2010. xxxiii
In September 2009 the Northern Territory Government announced that from 2 January 2011 outdoor eating and drinking areas in the Northern Territory would be required to be smokefree. Relevant amendments to the legislation were passed in 2010.xxxiv Outdoor eating and drinking areas are defined as any outdoor public place provided for the consumption of food or drink, or where a person would expect to be able to consume food or drink provided by an on-site food service. Licensed premises are included in the ban, but may designate up to 50 per cent of their total outdoor eating and drinking area as an exempt area, known as an outdoor smoking area (OSA).xxxv An OSA may be no more than 50 per cent of the total outdoor eating and drinking area, and must be separated from the no-smoking portion of the outdoor area by either a 2.1 metre high barrier or two metre wide buffer zone. The OSA must be clearly marked, and no entertainment may be provided within the OSA (including gaming machines or pool tables). The amendments also enabled workplaces, venues, organisations and local governments to voluntarily implement outdoor smokefree areas that would be enforceable through the Tobacco Control Act.
A smokefree area is defined as any of the following:
Domestic premises and exempt areas are excluded from the definition. Exempt areas are specified in the Tobacco Control Regulations,10 and include declared high-roller rooms in the casino; designated smoking areas within educational facilities; designated smoking areas in outdoor public venues that do not have an on-site food service; personal living areas in shared accommodation; the top deck of public transport vessels, oil and gas platforms; and outdoor smoking areas of liquor licensed premises.
In 2014, the Tobacco Control Regulations were amended to allow patrons to take meals into OSAs (including buffer areas) on liquor licensed premises should they wish to do so.xxxvii However, the amendments prohibit staff from serving patrons in an OSA. These amendments came into effect on 11 June 2014.
In 2014, the Tobacco Control Act 2002 (NT) was amended to ban smoking in cars with children under the age of 16 years.xxxviii The ban came into operation on 1 December 2014.
Smoking in enclosed workplaces and public areas including indoor dining areas of liquor licensed premises has been restricted in Queensland since 2002 under the Tobacco and Other Smoking Products Act 1998 (Qld) ('Tobacco and Other Smoking Products Act').11 Amendments to the Act in 2004xxxix introduced the most comprehensive smokefree laws in Australia at the time with effect from 1 January 2005. Smoking was banned anywhere within four metres of an entrance to a non-residential building, within 10 metres of outdoor children's playground equipment, in stadiums managed by the Queensland Major Sports Facilities Authority, and between the flags at patrolled beaches and at artificial beaches. Smoking bans in enclosed liquor licensed premises and poker machine gaming areas were phased in from 2005 to 2006, with smoking being permitted in one third of these areas from 30 September 2005 and being completely phased out by 1 July 2006. A ban on smoking at outdoor eating or drinking areas where food or drink is provided as part of a business came into effect from 1 July 2006. Liquor licensed premises can have a designated outdoor smoking area where only smoking and drinking can occur in up to 50 per cent of the outdoor area of the premises.
Further amendments to the Tobacco and Other Smoking Products Act came into effect on 1 September 2016. These amendments increased the buffer area required around the entrance to a non-residential building from four metres to five metres. In addition, the amendments ban smoking in a number of other outdoor areas, such as outdoor pedestrian malls, skate parks and swimming pool facilities (among others).xl
Areas in Queensland that are not required to be smokefree include:
Outdoor areas where smoking is restricted in Queensland include:
From 1 February 2017, smoking will also be banned within 10 metres of in-use campsites and any public facilities such as picnic tables, toilet blocks, barbecues, visitor information centres, shelters, jetties and boat ramps.
As noted further above, from 1 July 2006 outdoor eating or drinking places in Queensland were also declared smokefree.xlii An outdoor eating or drinking place is defined as any unenclosed area where customers may consume food or drink provided by an on-site food service.xliii An outdoor smoking area can be provided as long as no food or drink sold by the on-site food service is provided or consumed in the area, and the area is not within 5 metres of a public building entrance. Pubs, clubs and casinos may designate up to 50 per cent of the licensed outdoor area of their premises as a designated outdoor smoking area.xliv
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 considered:12
The most important question to consider is:
Liquor licensed premises that hold a general or club licence can designate an outdoor smoking area (DOSA) 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 followed, including:13
If a licensed premise chooses to have a DOSA, 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 must:
From 1 January 2010, Queensland local governments were given express power under the Tobacco and Other Smoking Products Act 1998 (Qld) to enact local laws banning smoking in pedestrian malls and at public transport waiting points such as bus stops.xlv Brisbane City Council used the power to enact a local law banning smoking in Queen Street Mall in Brisbane's central business district in 2011.xlvi, xlvii
On 1 September 2016, new laws came into effect which give local governments the power to ban smoking in any outdoor public space not covered by state-wide smoking bans.xlviii
Smoking has been banned in cars carrying children under 16 years of age in Queensland since 1 January 2010.xlix
A ban on smoking in all indoor dining areas was introduced in South Australia in January 1999.l As of 6 December 2004, smoking was banned in all enclosed public places, workplaces and shared areas under amendments to the Tobacco Products Regulation Act 1997 (SA) (‘the Tobacco Products Regulation Act’).14 Smoking restrictions in enclosed licensed hospitality premises were phased in from 2004, with a total ban on smoking in all enclosed areas of pubs, clubs and the Adelaide casino beginning on 1 November 2007.15 li South Australia, the Australian Capital Territory and Tasmania are the only Australian jurisdictions to have completely banned smoking within all enclosed areas of casinos. Other states and territories provide exemptions from indoor smoking bans for high-roller rooms in casinos (see Chapter 15, Section 18.104.22.168).
The South Australian ban on smoking in enclosed workplaces excludes workplaces that are also residences (such as hostels and nursing homes), places where self-employed persons work alone and work vehicles that are used by only one person.16
In some residential facilities, for example units and hostels, enclosed areas that are used by all tenants are defined as 'shared' areas and must be smokefree. For example, the following enclosed shared areas must be smokefree: stairwells, car parks, foyers, corridors, laundries, kitchens and common rooms.17
From 1 November 2007, smoking was banned in public places, workplaces or shared areas that are more than 70 per cent enclosed. An area is regarded as being 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 per cent of the total notional ceiling and wall area.lii Shade sails and umbrellas are regarded as a roof or ceiling for the purposes of this calculation. An area without a roof is considered unenclosed, as is an area that is at least 30 per cent open and allows the free flow of air.18 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 per cent enclosed. Closed blinds or other structures are considered as equivalent to walls, so if they result in an area being more than 70 per cent enclosed smoking will not be permitted.18
On 31 May 2007, South Australia became the first Australian state to enact a ban on smoking in vehicles when children under 16 years of age are present (Figure 15.7.1). 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 authority to enforce the law by issuing an expiation fee of $75. The maximum penalty is $200.19 Smoking is also prohibited in work vehicles, which are considered to be enclosed workplaces.
Smokefree car education campaign from South Australia
In South Australia, smoking is also banned in the following public places:
An ‘outdoor dining area’ is an unenclosed area in which tables, or tables and chairs, are permanently or temporarily provided for the purpose of public dining. Smoking is only banned in these areas when food (other than ‘snack food’) is being offered for purchase, or is otherwise provided by or on behalf of the occupier of the premises for the purpose of consumption in the outdoor dining area. Snack food is defined as pre-packaged food ‘of a kind generally intended to be consumed between meals.’lvi The Tobacco Products Regulation Act also allows local councils and other incorporated bodies to apply to have certain outdoor areas or events declared smoke-free. This allows the non-smoking status of the area or event to be legally enforceable.lvii Public areas which have been declared smoke-free include Moseley Square in Glenelg, and Henley Square.lvii The Royal Adelaide Show has also been declared a smoke-free event.lix
In Tasmania all indoor public places and workplaces must be smokefree under the Public Health Act 1997 (Tas).20xl The smokefree legislation was extended to include all licensed premises from 1 January 2006.xli Further restrictions apply to serviced outdoor areas of licensed premises, entry points to public buildings and outdoor dining areas. Tasmania, the Australian Capital Territory and South Australia are the only Australian jurisdictions to have completely banned smoking within all enclosed areas of casinos. Other states and territories provide exemptions from indoor smoking bans for high-roller rooms.
The following areas must be smokefree in Tasmania:21
Various public events in Tasmania have also been declared smokefree. These include the Tasmanian Fruit & Wine Festival and the Taste of Tasmania Festival.xlii
The following areas are not smokefree areas unless designated as such by the occupier:
An occupier who requires persons to work in a personal living area that is not smokefree must develop and implement procedures to minimise the risk to the health of those persons.
The Public Health Act 1997 (Tas) bans smoking in outdoor areas of licensed premises such as pubs, clubs and nightclubs.
Smoking in outdoor areas of licensed premises is only permitted in designated 'outdoor smoking areas'. A designated outdoor smoking area:
When the Tasmanian Department of Health and Human Services considers whether an area has a roof or a perimeter consisting of more than 50 per cent walls or windows, several factors are considered. These include the purpose of the wall (whether it encloses, divides, supports or protects), 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.22
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:
Less restrictive consideration may be given to this requirement if the roof is angled or pitched upwards.
On 19 December 2007, Tasmania passed a ban on smoking in vehicles if a person under the age of 18 years is inside the vehicle.xliv A police officer or other nominated officer has the authority to enforce the law by issuing a fine of up to 20 penalty units. Smoking is also banned in work vehicles used during the course of employment if another person is present.
Under the Public Health Act 1997 (Tas), local councils have the power to declare public streets, or any other area they occupy, smokefree.
Smoking was banned in all enclosed restaurants, cafes and dining areas of hotels, licensed clubs and shopping centres in Victoria from 2001 under the Tobacco Act 1987 (Vic).23 From 1 March 2006 the ban was extended to most enclosed workplaces; outdoor areas of underage music/dance events; and covered areas of train station platforms, trams stops and bus stops.xlv Exemptions to the ban on smoking in enclosed workplaces apply in relation to residential premises, casinos, vehicles, sole operator businesses that are not open to the public, personal living areas in paid accommodation or residential care, approved mental health facilities and immigration detention facilities. An exemption applied to licensed premises until 1 July 2007 when smoking was completely banned in enclosed licensed premises. At the same time, smoking was banned in outdoor dining or drinking areas with a roof and walls in place that are more than 75 per cent enclosed.
An 'enclosed' workplace under the Victorian legislation means an area, room or 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 or (b) open or closed.lxviii 'Substantially' is not defined in the legislation. This means workplaces with large roller doors, even if they are open, are required to be smokefree.lxix It also means the smoking status of an enclosed licensed premise will not change at any time.
Outdoor dining and drinking areas are treated differently from enclosed workplaces. Smoking is permitted in outdoor dining or drinking areas in Victoria unless the area has a roof and walls in place, and the total surface area of the walls is more than 75 per cent of the total notional wall area. An outdoor dining or drinking area includes a balcony, verandah, courtyard, rooftop, marquee, street, footpath or any similar outdoor area.lxx 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.25
On 13 October 2016, the Victorian Parliament passed the Tobacco Amendment Act 2016 (Vic) (‘the Victorian Amendment Act’). The Victorian Amendment Act includes new laws banning smoking in all outdoor dining areas where food is provided on a commercial basis (regardless of whether the area has a roof and walls in place, or the total surface area of the walls is more than 75% of the notional wall area).lxxx
These new laws will apply across Victoria from 1 August 2017.lxxxi
Under the new laws, an area will not be considered an ‘outdoor dining area’ if only drinks and/or ‘snacks’ are served in the area.lxxxii The term ‘snacks’ is defined as pre-packaged, shelf stable foods and fruit (provided the fruit has not been cut up prior to serving).lxxxiii
Smoking will therefore still be permitted in an outdoor area where only drinks and snacks are served unless the area has a roof and walls in place, and the total area of the wall surface exceeds 75% of the total notional wall area.
Under the new laws, if any part of an outdoor drinking area is within 4 metres of an outdoor dining area, the outdoor drinking area and the outdoor dining area must be separated by a wall that is at least 2.1 metres high. This is the case regardless of whether the outdoor drinking area and outdoor dining area are operated by the same occupier.lxxxiv
22.214.171.124 Smoking in cars
Smoking was banned in cars carrying persons under 18 years of age in Victoria from 1 January 2010.lxxi
In Victoria, smoking has been banned in the following outdoor areas:
A number of Victorian local councils have banned smoking in outdoor areas not covered by state legislation.lxxii For example, Frankston City Council has banned smoking in designated outdoor areas of the Frankston central activity district; Surf Coast Shire, City of Port Phillip and Hobsons Bay City Councils have banned smoking on beaches; and Moreland City Council has banned smoking at playgrounds. From October 2011 Monash City Council extended its ban on smoking at playgrounds to include within 10 metres of the entrance to buildings on designated council land (including schools, sporting grounds, council offices and community centres) and at designated council events.lxxiii Melbourne City Council has also banned smoking in a number of areas, including The Causeway, Howey Place, Block Place, Equitable Place, Goldsbrough Lane, QV Melbourne, City Square, the Tan and Princes Park running tracks.
Occupational health and safety regulations introduced in July 1997 restricted smoking in enclosed workplaces in Western Australia, but did not specifically apply to patrons attending hospitality venues. In 1999 smoking in enclosed public places such as theatres, shopping centres and cinemas was banned under the Health (Smoking in Enclosed Public Places) Regulations 1999 (WA). From 31 July 2006, smoking was prohibited in enclosed public places including pubs, clubs and restaurants under the Tobacco Products Control Act 2006 (WA) ('Tobacco Products Control Act')26 and Tobacco Products Control Regulations 2006.27 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:
Amendments to the Tobacco Products Control Act that came into effect on 22 September 2010 banned smoking between the flags at patrolled beaches; at outdoor eating areas (other than designated smoking zones at licensed premises); within 10 metres of children's playground equipment; and in vehicles when a person under the age of 17 years is present.lxxv
See Table 15.7.1 for a summary of smokefree legislation implementation dates in Western Australia.
An 'enclosed public place' is defined as a public place that has a ceiling or roof and that is more than 50 per cent enclosed by walls or other vertical structures or coverings.lxxvi The surface area of windows, doors or other closable openings must be included when calculating the percentage of vertical surfaces surrounding a space regardless of whether they are open or closed. The surface area of any vertical structures located at or within 1 m from the perimeter of the ceiling or roof must also be included in the calculation. If a public place does not have a roof then it is not considered to be enclosed.28
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 the enclosed place.lxxvii Adequate ventilation is defined as either natural ventilation or mechanical ventilation complying with specified provisions of the Building Code of Australia (which has been given the status of building regulations by all states and territories).29 Reasonable steps by an occupier may include28:
From 22 September 2010, smoking was banned in outdoor eating areas in Western Australia, other than in 'smoking zones' in licensed premises.lxxviii An outdoor eating area is defined as a public place or part of a public place that is provided, on a commercial basis, as an area where food or drink may be consumed by people sitting at tables. The owner or occupier of a liquor licensed premise that is not the subject of a restaurant licence may designate up to 50% of their outdoor eating area as a smoking zone, provided the area is not an enclosed public place.30
Smoking in a vehicle while a person under 17 years of age is present was banned in Western Australia from 22 September 2010.
See Table 15.7.1 for a timeline of implementation dates of smokefree legislation across all states and territories.
For recent news items and research on this topic, click here (Last updated October 2016 )
iii Air Navigation Regulations (Amendment) 1996 (Cth), reg 4.
vii Copy of policy available from Sydney Airport Corporation website: http://www.sydneyairport.com.au/Sacl/T1-Services-and-Amenities.html
viii Smoke-free Areas (Enclosed Public Places) (Amendment) Act 1994 (repealed) (ACT). Available from: http://www.legislation.act.gov.au/a/1994-92/default.asp
ix Smoke-Free Public Places Regulation 2005 (ACT), Part 2. Available from: http://www.legislation.act.gov.au/sl/2005-21/default.asp
x Smoke-Free Public Places Act 2003 (ACT), s 3. Available from: http://www.legislation.act.gov.au/a/2003-51/default.asp
xi Smoke-Free Public Places Regulation 2005 (ACT), reg 6. Available from: http://www.legislation.act.gov.au/sl/2005-21/default.asp
xii Smoke-Free Public Places Regulation 2005 (ACT), reg 8. Available from: http://www.legislation.act.gov.au/sl/2005-21/default.asp
xv Smoking in Cars with Children (Prohibition) Act 2011 (ACT). Available from: http://www.legislation.act.gov.au/a/2011-40/default.asp
xvi Smoke-free Public Places Act 2003 (ACT), section 9O.
xvii Smoke-free Public Places (Play Spaces) Declaration 2016 (No 1). Available from: http://www.legislation.act.gov.au/di/2016-250/current/pdf/2016-250.pdf
xviii Smoke-free Environment Amendment Act 2004 (NSW), schedule 1, ss. 11A and 11B.
xvix Smoke-free Environment Act 2000 (NSW), s 11.
xx Tobacco Legislation Amendment Act 2012 (NSW).
xxi Smoke-free Environment Act 2000 (NSW), Part 2, s. 6 and schedule 1. Available from: http://www.legislation.nsw.gov.au/viewtop/inforce/act+69+2000+FIRST+0+N/
xxii Smoke-free Environment Act 2000 (NSW), schedule 1. Available from: http://www.legislation.nsw.gov.au/maintop/view/inforce/act+69+2000+cd+0+N
xxiii Smoke-free Environment Act 2000 (NSW), s. 4. Available from: http://www.legislation.nsw.gov.au/maintop/view/inforce/act+69+2000+cd+0+N
xxiv Smoke-free Environment Act 2000 (NSW), s. 4. Available from: http://www.legislation.nsw.gov.au/maintop/view/inforce/act+69+2000+cd+0+N
xxv Smoke-free Environment Regulation 2016 (NSW), reg. 8(2). Available from: http://legislation.nsw.gov.au/#/view/regulation/2016/558/sec8
xxvi Smoke-free Environment Regulation 2016, reg 8(3).
xxvii Smoke-free Environment Act 2000 (NSW), s 6A.
xxviii Smoke-free Environment Act 2000 (NSW), s 4A.
xxix Smoke-free Environments Act 2000 (NSW), s 4A.
xxx Tobacco Control Act 2002 (NT). Available from: http://www.austlii.edu.au/au/legis/nt/consol_act/tca163/
xxxi Tobacco Control Act 2002 (NT)
xxxii Tobacco Control Act 2002 (NT)
xxxiii Tobacco Control Amendment Regulations 2009 (NT), reg. 6. Available from: http://www.austlii.edu.au/au/legis/nt/num_reg/tcar200940o2009398/
xxxiv Tobacco Control Legislation Amendment Act 2010 (NT), available from: http://www.austlii.edu.au/au/legis/nt/num_act/tclaa201025o2010401/ and Tobacco Control Amendment Regulations 2010 (NT) available from: http://www.austlii.edu.au/au/legis/nt/num_reg/tcar201029o2010398/
xxxv Tobacco Control Regulations (NT), reg. 15B. Available from: http://notes.nt.gov.au/dcm/legislat/legislat.nsf/d989974724db65b1482561cf0017cbd2/0da782091128647d69257754001fdc8d?OpenDocument
xxxvi Tobacco Control Act 2002 (NT), s. 7. Available from: http://notes.nt.gov.au/dcm/legislat/legislat.nsf/d989974724db65b1482561cf0017cbd2/1367ced89982703c69257899001350c1?OpenDocument
xxxvii Tobacco Control Amendment Regulations 2014 (NT).
xxxviii Tobacco Control Act 2001 (NT), s 11A (as inserted by the Tobacco Legislation Amendment Act 2014).
xxxix Tobacco and Other Smoking Products Amendment Act 2004 (Qld). Available from: http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2004/04AC047.pdf
xl Tobacco and Other Smoking Products (Smoke-free Places) Amendment Act 2016
xli Tobacco and Other Smoking Products Act 1998 (Qld), s. 26R. Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobaccoOSmPrA98.pdf
xlii Tobacco and Other Smoking Products Act 1998 (Qld), s. 26X. Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobaccoOSmPrA98.pdf
xliii Tobacco and Other Smoking Products Act 1998 (Qld), s. 26W. Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobaccoOSmPrA98.pdf
xliv Tobacco and Other Smoking Products Act 1998 (Qld), s. 26ZA. Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobaccoOSmPrA98.pdf
xlv Tobacco and Other Smoking Products Act 1998 (Qld), s. 27ZPB. Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/s26zpb.html
xlvi Brisbane City Council. Public notice of proposed Smoke Free Places Local Law 2011 and Smoke Free Places Subordinate Local Law 2011 for the City of Brisbane. Viewed 16 June 2011. Available from: http://www.brisbane.qld.gov.au/2010%20Library/2009%20PDF%20and%20Docs/7.Laws%20and%20Permits/Public_Notice_Smoke_Free_Places_Local_Law2011_pdf.PDF
xlvii Brisbane City Council. Smoke Free Places Local Law 2011. Available from: http://www.brisbane.qld.gov.au/2010%20Library/2009%20PDF%20and%20Docs/7.Laws%20and%20Permits/proposed_local_law_Smoke_Free_Places_pdf.pdf
xlviii Tobacco and Other Smoking Products Act 1998 (QLD), s 26ZPA.
xlix Tobacco and Other Smoking Products Act 1998 (Qld), s. 27VC. Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobaccoOSmPrA98.pdf
l Tobacco Products Regulation (Smoking in Unlicensed Premises) Amendment Act 1999 (SA). Listed in Gazette 8.4.1999 p1634. http://www.austlii.edu.au/au/legis/sa/consol_act/tpra1997293/
li Tobacco Products Regulation (Further Restrictions) Amendment Act 2004 (SA), s. 17. Available from: http://www.austlii.edu.au/au/legis/sa/num_act/tprraa200442o2004665/
lii Tobacco Products Regulation Act 1997 (SA) s. 4(3). Available from: http://www.austlii.edu.au/au/legis/sa/consol_act/tpra1997293/s4.html
liii Tobacco Products Regulation Act 1997 (SA), s 49.
liv Tobacco Products Regulation Act 1997 (SA), s 50.
lv Tobacco Products (Smoking Bans in Public Areas – Longer Term) Regulation 2012 (SA), reg 6.
lvi Tobacco Products (Smoking Bans in Public Areas – Longer Term) Regulation 2012 (SA), reg 6.
lvii Tobacco Products Regulation Act 1997 (SA), s 51 and 52.
lviii Tobacco Products (Smoking Bans in Public Areas – Longer Term) Regulation 2012 (SA), regs 5 and 5A..
lix Tobacco Products (Smoking Bans in Public Areas – Longer Term) Regulation 2012 (SA), reg 4
lx Public Health Act 1997 (Tas), Part 4, division 1A. Available from: http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/
lxi Public Health Amendment Act 2004 (Tas) Available from: http://www.austlii.edu.au/au/legis/tas/num_act/phaa200434o2004252/
lxii A full list of smokefree public events in Tasmania is available at: http://www.dhhs.tas.gov.au/publichealth/tobacco_control/tobacco_control_laws/smoke-free/smoke-free_public_events
lxiii Public Health Act 1997 (Tas), s 3A.
lxiv Public Health Amendment Act 2007 (Tas), s.67H(2). Available from: http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/
lxv Tobacco (Amendment) Act 2005 (Vic). Available from: http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/55B5BBE3746510FCCA25705F0020F82D/$FILE/05-045a.pdf
lxvi Tobacco Act 1987 (Vic), s. 5A. Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/s5a.html
lxvii Tobacco Act 1987 (Vic), s. 5A. Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/
lxviii Tobacco Act 1987 (Vic), s. 3. Available from: http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/LTObjSt4.nsf/0/2e41f3df50a8d522ca2577610030f700/$FILE/87-81a071.pdf
lxix Victorian State Government. Department of Health. New tobacco laws: workplaces (commencing 1 March 2006). Viewed 19 June 2011. Available from: http://www.health.vic.gov.au/tobaccoreforms/downloads/workplaces_factsheet.pdf
lxx Tobacco Act 1987 (Vic), s. 3. Available from: http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/LTObjSt4.nsf/0/2e41f3df50a8d522ca2577610030f700/$FILE/87-81a071.pdf
lxxi Tobacco Act 1987 (Vic), s.5S. Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/
lxxii Victorian public premises’ is defined in section 3 of the Tobacco Act 1987 (Vic), and includes Parliament, Victorian Courts, hospitals and any building occupied by a public service body.
lxxiii Heart Foundation Victoria and Quit Victoria. Smoke-free policies in outdoor areas - A 2011 Victorian council survey report. Melbourne, Victoria, 2011. Viewed 11 November 2011. Available from: http://www.heartfoundation.org.au/SiteCollectionDocuments/Survey-report-2011.pdf
lxxiv City of Monash Local Law No. 4 – Prohibition on Smoking. Available from: http://www.monash.vic.gov.au/council/pdftext/local-law4.pdf
lxxv Tobacco Products Control Regulations 2006 (WA), reg. 8. Available from: http://www.austlii.edu.au/au/legis/wa/consol_reg/tpcr2006380/s8.html
lxxvi Tobacco Products Control Amendment Act 2009 (WA). Available from: http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_11228_homepage.html
lxxvii Tobacco Products Control Regulations 2006 (WA), reg. 8. Available from: http://www.austlii.edu.au/au/legis/wa/consol_reg/tpcr2006380/s8.html
lxxviii Tobacco Products Control Regulations 2006 (WA), reg. 13. Available from: http://www.austlii.edu.au/au/legis/wa/consol_reg/tpcr2006380/s13.html
lxxix Tobacco Products Control Act 2009 (WA), s107B. Available from: http://www.austlii.edu.au/au/legis/wa/consol_act/tpca2006271/s107b.html
lxxx See section 3F of the Tobacco Act 1987 (as inserted by section 6 of the Tobacco Amendment Act 2016). Also see sections 5EA and 5EB of the Tobacco Act 1987 (as inserted by section 7 of the Tobacco Amendment Act 2016).
1. Smoke-Free Public Places Act 2003 (ACT). Available from: http://www.austlii.edu.au/au/legis/act/consol_act/sppa2003216/index.html
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6. Smoke-free Environment Regulation 2007 (NSW). Available from: http://www.legislation.nsw.gov.au/viewtop/inforce/subordleg+426+2007+FIRST+0+N/
7. Public Health (Tobacco) Act 2008 (NSW). Available from: http://www.austlii.edu.au/au/legis/nsw/consol_act/pha2008178/
8. Heart Foundation NSW. Smoke-free policy in outdoor areas. A 2011 survey of NSW councils. Sydney: Heart Foundation New South Wales, 2011. Available from: http://www.heartfoundation.org.au/driving-change/current-campaigns/local-campaigns/Pages/nsw-smoke-free.aspx
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11. Tobacco and Other Smoking Products Act 1998 (Qld). Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/
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20. Public Health Act Division 1A - Smoke-free areas 67H(2) 1997 (Tas). Available from: http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/
21. Government of Tasmania. A guide to smoke-free areas in Tasmania. Hobart: 2006. Available from: http://www.dhhs.tas.gov.au/__data/assets/pdf_file/0006/53826/FinalGuidetoTasmanianSFA.pdf.
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23. Tobacco Act 1987 (Vic). Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/
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26. Tobacco Products Control Act 2006 (WA). Available from: http://www.austlii.edu.au/au/legis/wa/num_act/tpca20065o2006317/index.html#sch2
27. Tobacco Products Control Regulations 2006 (WA). Available from: http://www.slp.wa.gov.au/statutes/regs.nsf/3b7e5f26432801b348256ec3002c128c/ab250202ff8e4cba482571b90025e796/$FILE/Tobacco%20Products%20Control%20Regulations%202006.PDF
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29. Australian Building Codes Board. Building Code of Australia. Viewed 8 May 2011. Available from: https://www.abcb.gov.au/index.cfm?fuseaction=Welcome.
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