15.7 Legislation to ban smoking in public spaces

Last updated: July 2019 Suggested citation:  Grace, C. & Smith, L.15.7 Legislation to ban smoking in public spaces. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2019. 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. See Table 15.7.1, below, for a quick one-page summary guide of implementation dates of smokefree legislation across all states and territories. Detailed explanations and references are provided in the state-by-state compilation at Table 15.7.2, available here. Local governments in a number of states have also enacted local laws to ban smoking in outdoor areas not covered by state legislation.

On this page:

• Commonwealth legislation
• ACT
• New South Wales
• Northern Territory
• Queensland
• South Australia
• Tasmania
• Victoria
• Western Australia

15.7.1 Commonwealth legislation

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. 

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15.7.2 Australian Capital Territory legislation

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, ^vii 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.

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in the Australian Capital Territory.

15.7.2.1 Enclosed public places

The Smoke-Free Public Places Regulation 2005 (ACT) ³ made under the Smoke-Free Public Places Act sets out what constitutes an 'enclosed public place' in the Australian Capital Territory. ^viii

A public place 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. ^ix

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. ^x 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. ^xi

15.7.2.2 Outdoor eating and drinking places

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. ^xii 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). ^xiii 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.

15.7.2.3 Smoking in cars

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. ^xiv

15.7.2.4 Ministerial power to declare areas 'smoke-free'

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'. ^xv 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. ^xvi This declaration came into effect on 7 September 2016. On 1 October 2017, the ACT Government made a declaration banning smoking within 5 metres of all public transport stops and at all transport stations within the ACT. The ban includes all platforms of passenger railways and light rail stations, bus stops and bus stations, taxi ranks and bus stop seating areas. ^xvii

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15.7.3 New South Wales legislation

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:

• 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
• childcare facilities
• hospitals
• casinos (other than a casino private gaming area or residential accommodation)
• hotels (other than residential accommodation)
• clubs (other than residential accommodation)
• nightclubs. ^xxii

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 15.7.2 for a summary of smokefree legislation implementation dates in New South Wales.

15.7.3.2 Smokefree areas – Outdoor Public Places

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:

• (a) within 10 metres of children’s play equipment in outdoor public places 
• (b) at public swimming pool complexes 
• (c) in spectator areas at public sports grounds and other recreational areas (but only during an organised sporting event) 
• (d) at public transport stops and stations 
• (e) within 4 metres of a pedestrian entrance to (or exit from) a public building (known as the ‘4 metre law’) (f) in commercial outdoor dining areas (discussed further below). ^xxvii

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. 

On 1 September 2016, the ‘4 metre law’ was expanded so that smoking is also banned in public thoroughfares, footpaths or streets that are within 4 metres of an entrance to or exit from an ‘applicable courtyard or garden’. An ‘applicable courtyard or garden’ means a courtyard or garden that:

• (a) adjoins a building; and
• (b) is substantially surrounded by a fixed fence or wall, or other similar structure; and
• (c) is set aside for persons using the adjoining building; and
• (d) does not form part of a public thoroughfare that is generally used by pedestrians, other than persons using the adjoining building. ⁷

15.7.3.3 Commercial outdoor dining areas

An outdoor area will be considered a ‘commercial outdoor dining area’ if the area is an outdoor public place that is also:

• (a) a seated dining area; or
• (b) is located within 4 metres of a seated dining area at a licensed premises, restaurant or café; or
• (c) is located within 10 metres of a food fair stall. ^xxviii

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

15.7.3.4 Smoking in cars

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). ⁸

15.7.3.5 Local government

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. 9

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15.7.4 Northern Territory legislation

Under the Northern Territory's Tobacco Control Act 2002 ^{10   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.

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in the Northern Territory.

15.7.4.1 Smokefree areas as of 31 May 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 and 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 which 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 within three metres of air-conditioning inlets (not applicable to al fresco dining areas or beer gardens that allow smoking)
• dance floors
• common rooms and thoroughfares in group accommodation including nursing homes and hotels; private rooms within the group accommodation may allow smoking, and 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 per cent of fixed seating in sporting venues and other outdoor events (such as racetracks, grandstands and showgrounds). ^xxxi

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
• no-smoking areas of licensed premises (licensed premises were required to provide an area of 'equal amenity' for non-smokers, of equal attractiveness and providing the same type of service as the smoking areas)
• no-smoking areas of venues with more than 25 gambling/poker machines (half of the machines are required to be no-smoking). ^xxxii

15.7.4.2 Smokefree areas as of 2 January 2011

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:

• an enclosed public area
• an enclosed workplace area
• an outdoor public venue
• a food service area
• public transport
• a public transport area
• shared accommodation
• an educational facility
• an entrance area
• an air-conditioning inlet area
• a voluntarily declared area
• an outdoor eating or drinking area. ^xxxvi

Domestic premises and exempt areas are excluded from the definition. Exempt areas are specified in the Tobacco Control Regulations, ¹¹  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.

15.7.4.3 2014 amendments to Tobacco Control Regulations (NT)

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.

15.7.4.4 Smoking in cars

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.

15.7.4.5  Smoking at community events and facilities

From 1 July 2019, smoking was prohibited within 10 metres of the boundary and entry area of community events and community facilities prescribed by the Tobacco Control Regulations. ¹² This includes:

• BMX and motorbike racing facilities;
• Car racing facilities;
• Community festivals;
• Community markets;
• Horse racing facilities;
• Playground equipment;
• Public swimming pools;
• Show grounds;
• Skate parks;
• Sports fields.

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15.7.5 Queensland

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'). ¹³  Amendments to the Act in 2004 ^xxxix 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.

From 5 May 2014, the possession or use of smoking products was banned in corrective services facilities. ¹⁴

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

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in Queensland.

15.7.5.1 Exempt areas

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 common areas of the accommodation
• vehicles, unless the vehicle is for business use and there is more than one person in the vehicle (and see further below regarding smoking in cars with children)
• a premium gaming room (high-rollers club)
• an exemption also applies for a person who performs in a theatre or other enclosed place. Such a person does not commit an offence by smoking during the performance if smoking is part of the performance. ^xli

15.7.5.2 Outdoor areas where smoking is restricted

Outdoor areas where smoking is restricted in Queensland include:

• patrolled beaches (between the flags)
• artificial beaches
• sports stadiums managed by the Major Sports Facilities Authority
• major event facilities
• national parks (prescribed by regulation)
• within 10 metres of outdoor children's playground equipment
• within 5 metres of state and non-state schools
• within 5 metres of the entrance to a non-residential building (this does not apply to entrances to residential premises such as homes or multi-unit residential accommodation, to liquor licensed premises with a commercial hotel licence or community club licence, casinos, or to a person in a prescribed outdoor pedestrian mall)
• within 5 metres of public transport waiting points
• within 10 metres of playing and viewing areas during organised under-18 sporting events
• within 10 metres of skate parks
• within 5 metres of early childhood education and care services
• at all outdoor pedestrian malls
• within 5 metres of all residential aged care facilities, outside of designated areas
• at pedestrian precincts around prescribed State Government Buildings
• at swimming pool facilities.

Since 1 February 2017, smoking has also been 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

15.7.5.3 Definition of an enclosed and outdoor area

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: 15

• 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 because it cannot meet the definition of enclosed. If the answer is 'yes', then further questions need to be 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

15.7.5.4 Guidelines for 'designated outdoor smoking areas'

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: 16

• A premise may have more than one DOSA, but the total area of all DOSAs must not be more than 50 per cent 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 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.
• The licensee must prepare and implement a smoking management plan for the entire premises.

15.7.5.5 Smoking management plans

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:

• 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 secondhand smoke
• 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.

15.7.5.6 Local government

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

15.7.5.7 Smoking in cars

Smoking has been banned in cars carrying children under 16 years of age in Queensland since 1 January 2010. ^xlix

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15.7.6 South Australian legislation

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’). ¹⁷  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. ^{18 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 15.4.1.5).

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. ¹⁹

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. ²⁰

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in South Australia.

15.7.6.1 Enclosed areas

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. ²¹  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. ²¹

15.7.6.2 Smoking in cars

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. ²²  Smoking is also prohibited in work vehicles, which are considered to be enclosed workplaces.

15.7.6.3 Other smokefree areas

In South Australia, smoking is also banned in the following public places:

• public transport waiting areas, where the area is wholly or partly covered by a roof ^liii
• within 10 metres of children’s playground equipment located in a public area ^liv
• public outdoor dining areas ^lv

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

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15.7.7 Tasmanian legislation

In Tasmania all indoor public places and workplaces must be smokefree under the Public Health Act 1997 (Tas).  ^{23 lx}  The smokefree legislation was extended to include all licensed premises from 1 January 2006. ^lxi  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.

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in Tasmania.

The following areas must be smokefree in Tasmania: ²⁴

• enclosed public places and enclosed public workplaces
• outdoor dining areas (including within three metres of an outdoor dining area, unless the area is surrounded by an impervious screen or barrier which is at least 2.1 metres high)
• outdoor areas of licensed premises such as bars, clubs and nightclubs except for designated 'outdoor smoking areas' (discussed further below)
• any area not within private premises that has been designated by the occupier as a smokefree area
• public swimming pools
• between the flags at patrolled beaches
• within 10 metres of play equipment at a children’s playground located in a public place
• within three metres of an entrance or exit from a non-domestic or multiple-use building (exceptions to the three metre rule apply to some outdoor smoking areas and outdoor dining areas)
• within 10 metres of any air intake for ventilation equipment in a non-domestic or multiple-use building
• a public street declared by regulation to be a ‘bus mall’
• within three metres of a bus shelter
• a public street declared by regulation to be a ‘pedestrian mall’
• work vehicles while being used during the course of employment if another person is present.

Various public events in Tasmania have also been declared smokefree. These include the Tasmanian Fruit & Wine Festival and the Taste of Tasmania Festival. ^lxii

The following areas are not smokefree areas unless designated as such by the occupier:

• an open deck area of a ship or vessel
• personal living areas of a place providing accommodation for a fee or a residential care facility or prison from which smoke drift to smokefree areas cannot reasonably occur.

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.

On 30 January 2015, smoking was banned in prisons under the Corrections Act 1997 (Tas) pursuant to a standing order issued by the Director of Corrective Services. ²⁵   lxiii

15.7.7.1 Outdoor areas of licensed premises

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:

• must not be serviced (this includes the delivery of beverages and snacks or other food by staff to patrons)
• must either not have a roof, or, if roofed, must not have a perimeter consisting of more than 50 per cent walls or windows (whether open or closed). A roof includes any structure or device whether fixed or moveable that prevents or impedes upward airflow. ^lxiv

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. ²⁶

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 3 metres
• the area is less than 10 metres. ²

Less restrictive consideration may be given to this requirement if the roof is angled or pitched upwards.

15.7.7.2 Smoking in cars

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. ^lxv 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.

15.7.7.3 Local government

Under the Public Health Act 1997 (Tas), local councils have the power to declare public streets, or any other area they occupy, smokefree.

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15.7.8 Victorian legislation

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). ²⁷  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. ^lxvi 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.

• See Table 15.7.2 for a summary of smokefree legislation implementation dates in Victoria.

15.7.8.1 Exemptions to the workplace smoking ban

Smoking is banned in enclosed workplaces in Victoria. ^lxvii There are a number of exemptions to the ban, including: ²⁸

• residential premises not used for carrying on a business
• a part of residential premises used for carrying on a business, while no non-resident employees or members of the public are present
• outdoor dining or drinking areas
• a declared smoking area of a casino (high-roller rooms at Crown Casino)
• a vehicle (although see below regarding the ban on smoking in cars with children)
• a place of business occupied by a sole operator of the business that is not for the use of members of the public
• personal sleeping or living areas of premises providing accommodation to members of the public for a fee (e.g. hotels) or a residential care facility
• a declared area in an approved mental health service
• prison cells and exercise yards
• detention centres established for the purposes of the Migration Act 1958 (Cth). ^lxviii

15.7.8.2 Enclosed and outdoor areas

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. ^lxix 'Substantially' is not defined in the legislation. This means workplaces with large roller doors, even if they are open, are required to be smokefree. ^lxx 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. ^lxxi 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. ²⁹

On 13 October 2016, the Victorian Parliament passed the Tobacco Amendment Act 2016 (Vic) (‘the Victorian Amendment Act’). The Victorian Amendment Act included 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). ^lxxii  

These new laws apply across Victoria from 1 August 2017. ^lxxiii  

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. ^lxxiv  The term ‘snacks’ is defined as pre-packaged, shelf stable foods and fruit (provided the fruit has not been cut up prior to serving). ^lxxv    

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. ^lxxvi

The new laws also ban smoking at certain food fairs (such as the Night Noodle Market and Queen Victoria Night Market) and at certain organised outdoor events. 

15.7.8.3 Smoking in cars

Smoking was banned in cars carrying persons under 18 years of age in Victoria from 1 January 2010. ^lxxvii

15.7.8.4 Smokefree outdoor areas

In Victoria, smoking has been banned in the following outdoor areas:

• outdoor areas within education and care service premises
• outdoor areas within children’s service premises
• within four metres of the entrance to an education or care service premises, or a children’s service premises
• outdoor areas within a public swimming pool complex
• outdoor areas within a school premises, or within 4 metres of an entrance to a school
• within 10 metres of outdoor children’s playground equipment located in a public place
• within four metres of the entrance to a children’s indoor play centre
• within 10 metres of an outdoor public skate park
• within four metres of the entrance to a ‘Victorian public premises’ ^lxxviii
• within 10 metres of a sporting venue during an organised underage sporting event or training/practice session
• at patrolled beaches
• at under-age music or dance events
• at train stations, tram-stop platforms and bus shelters

15.7.8.5 Local government

A number of Victorian local councils have banned smoking in outdoor areas not covered by state legislation. ^lxxix 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. ^lxxx 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, Collins Way, Fulham Place, and the Tan and Princes Park running tracks.

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15.7.9 Western Australian legislation

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') ³⁰  and Tobacco Products Control Regulations 2006. ³¹  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 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. ^lxxxi

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. ^lxxxii

See Table 15.7.2 for a summary of smokefree legislation implementation dates in Western Australia.

15.7.9.1 Definition of an enclosed public place

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. ^lxxxiii 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. 32

15.7.9.2 Duty to prevent smoke entering enclosed public places

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. ^lxxxiv 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). ³³

15.7.9.3 Buffer area around enclosed public places

From 18 March 2019, smoking is not permitted within 5 metres of a public entrance to an enclosed public place, or within 10 metres of an air intake for air conditioning equipment that is in or on an enclosed public place. ^lxxxv

15.7.9.4 Outdoor eating areas

From 22 September 2010, smoking was banned in outdoor eating areas in Western Australia, other than in 'smoking zones' in licensed premises. ^lxxxvi 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. ³⁴

15.7.9.5 Smoking in cars

Smoking in a vehicle while a person under 17 years of age is present was banned in Western Australia from 22 September 2010.

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15.7.10 Summary of smokefree legislation across Australian states and territories

See Table 15.7.1, below, for a quick one-page summary guide of implementation dates of smokefree legislation across all states and territories.

Detailed explanations and references are provided in the state-by-state compilation at Table 15.7.2, available here.

Relevant news and research

For recent news items and research on this topic, click  here. ( Last updated August 2021)

 

References

1. Smoke-Free Public Places Act 2003 (ACT). Available from: http://www.austlii.edu.au/au/legis/act/consol_act/sppa2003216/index.html

2. Barnsley K and Freeman B. Chapter 15. Smokefree environments. In Scollo, M, and Winstanley, M, ed. Tobacco in Australia: Facts and Issues. Melbourne, Australia: The Cancer Council Victoria, 2008;Available from: http://www.tobaccoinaustralia.org.au/chapter-15-smokefree-environment

3. Smoke-Free Public Places Regulation 2005 (ACT). Available from: http://www.austlii.edu.au/au/legis/act/consol_reg/sppr2005307/

4. Smoking (Prohibition in Enclosed Public Places) Amendment Regulation (No. 1) 2010 (ACT). Available from: http://www.austlii.edu.au/au/legis/act/num_reg/sieppar2010144o2010667/index.html

5. Smoke-free Environment Act 2000 (NSW). Available from: http://www.legislation.nsw.gov.au/viewtop/inforce/act+69+2000+FIRST+0+N/

6. Smoke-free Environment Regulation 2007 (NSW). Available from: http://www.legislation.nsw.gov.au/viewtop/inforce/subordleg+426+2007+FIRST+0+N/

7.  Smoke-free environment regulation 2016. 2016 (NSW); Available from: https://www.legislation.nsw.gov.au/regulations/2016-558.pdf.

8.  Public health (tobacco) act. 2008 (NSW); Available from: http://www.austlii.edu.au/au/legis/nsw/consol_act/pha2008178/.

9. 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.

10.  Tobacco control act. 2002 (NT); Available from: http://www.austlii.edu.au/au/legis/nt/consol_act/tca163/ 

11. Tobacco control regulations, 2009 (NT). Available from: http://www.austlii.edu.au/au/legis/nt/consol_reg/tcr272/index.html#s1.

12. Tobacco control legislation amendment bill 2018. 2018 (NT); Available from: https://parliament.nt.gov.au/committees/EPSC/56-2018.

13.  Tobacco and other smoking products act. 1998 (Qld); Available from: http://www.austlii.edu.au/au/legis/qld/consol_act/taospa1998339/.

14. Sloane J. Claims plain packaging works go up in smoke. The Australian, 2014; 16 Jun. Available from: http://www.theaustralian.com.au/

15. Queensland Government. Queensland health. Explanation of 'enclosed' and 'outdoor'. Brisbane, Australia 2009. Available from: http://www.health.qld.gov.au/tobaccolaws/eating/enclosed.asp.

16. Queensland Health. Designated outdoor smoking area. Brisbane, Australia 2009. Available from: http://www.health.qld.gov.au/tobaccolaws/eating/dosa.asp.

17.  Tobacco products regulation act. 1997 (SA); Available from: http://www.austlii.edu.au/au/legis/sa/consol_act/tpra1997293/.

18.  Tobacco products regulation (further restrictions) amendment act. 2004 (SA); Available from: http://www.austlii.edu.au/au/legis/sa/num_act/tprraa200442o2004665/index.html#s4.

19. Government of South Australia. Your smoke-free workplace. Adelaide: Government of South Australia, 2004. Available from: http://www.tobaccolaws.sa.gov.au/Portals/0/WPA_YourSmokefreeWorkplace.pdf.

20. Government of South Australia. Smoke-free public places and shared areas.  2005. Available from: http://www.tobaccolaws.sa.gov.au/Default.aspx?tabid=100.

21. Government of South Australia. Outdoor areas. Adelaide: Government of South Australia, 2007. Available from: http://www.tobaccolaws.sa.gov.au/Default.aspx?tabid=159.

22. Government of South Australia. Smoke with kids in the car and you'll cough up a fine. Adelaide: Government of South Australia, 2007. Available from: http://www.tobaccolaws.sa.gov.au/Default.aspx?tabid=163.

23.  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/.

24. 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.

25.  Corrections act 1997. 1997 (Tas); Available from: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1997-051.

26. Government of Tasmania. Outdoor smoking areas - a guide for licensed premises. Hobart 2006. Available from: http://www.dhhs.tas.gov.au/__data/assets/pdf_file/0007/53827/OSA_Guide_for_Licensed_Premises.pdf.

27.  Tobacco act. 1987 (Vic); Available from: http://www.austlii.edu.au/au/legis/vic/consol_act/ta198773/.

28. Government of Victoria. Smoke-free workplaces guide. Melbourne, Australia 2007. Available from: http://www.health.vic.gov.au/tobaccoreforms/downloads/smoke-free_workplaces_guide.pdf.

29. Government of Victoria. Smoke-free guide: Licensed premises and outdoor dining or drinking areas. Melbourne, Australia 2007. Available from: http://www.health.vic.gov.au/tobaccoreforms/downloads/licensed_prem.pdf.

30.  Tobacco products control act. 2006 (WA); Available from: http://www.austlii.edu.au/au/legis/wa/num_act/tpca20065o2006317/index.html#sch2.

31.  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.

32. Government of Western Australia Department of Health. Tobacco products control act 2006: Smoking in enclosed public places.  2006. Available from: http://www.tobaccocontrol.health.wa.gov.au/publications/docs/3456-Public%20Places.pdf.

33. Australian Building Codes Board. Building code of Australia. Viewed 8 may 2011. Available from: Https://www.Abcb.Gov.Au/index.Cfm?Fuseaction=welcome.

34. Government of Western Australia. Smokefree outdoor eating areas. Perth 2011. Available from: http://www.tobaccocontrol.health.wa.gov.au/legislation/docs/Smoke_ban_outdoor_eating_areas.pdf.