Smoke-free Environment Act 2000

The Act’s principal legal concepts are defined and interconnected in a relatively compact statutory structure. The central concepts are: smoke (broadly defined), smoke‑free area (enclosed and specified outdoor public places), occupier, exempt area, inspector, certificate of authority, and the regulatory delegation to the Governor for detailed rules.

Definitions. The Act’s definition of smoke in s 4 is purposive and expansive: it covers the use, consumption, holding or other control over a tobacco product, a non‑tobacco smoking product (as defined in the Public Health (Tobacco) Act 2008), or vaping goods (as defined under the Commonwealth Therapeutic Goods Act 1989) that are generating smoke, or an aerosol or vapour. This means the prohibition is not limited to combustion of tobacco but includes vapes and non‑tobacco products when they generate aerosol/vapour that the user controls (s 4).

Smoke‑free areas: two categories.

• Enclosed public places are automatically smoke‑free (s 6). The term enclosed public place is defined in s 4 and Schedule 1 lists typical examples (for instance, shopping centres, cafes, vehicles, hospitals, casinos except casino private gaming area, hotels and clubs except residential accommodation).
• Certain outdoor public places are specifically designated smoke‑free (s 6A). This list is detailed (s 6A(1)(a)-(l)) and includes transport‑related points (platforms, ferry wharves, light rail stops, bus stops, taxi ranks), areas near children’s play equipment, spectator areas during organised sporting events, and commercial outdoor dining areas (definition at s 4A). The regulations may extend the list (s 6A(4)).

Exempt areas. Part 3 sets an alternative regime for specified premises (clubs, hotels, nightclubs, casinos) where certain rooms or parts may be set aside as exempt areas under older transitional provisions (ss 11-11C) or be designated as casino private gaming areas (s 11). The regulator may set requirements for premises containing exempt areas (s 12) and the Director‑General can remove an exemption after statutory notice and an opportunity to be heard (s 13).

Occupier duties. Occupiers of smoke‑free areas must not allow smoking in enclosed public places and commercial outdoor dining areas and face different penalties by person type (s 8). Occupiers also must display prescribed signs unless expressly exempted (s 9) and must take reasonable steps to prevent smoke entering smoke‑free areas when smoking is allowed elsewhere on the same premises (s 10). The Minister may issue guidelines, and compliance with those guidelines constitutes compliance with the reasonable‑steps requirement (s 10(3)-(4)).

Enforcement machinery. The Director‑General appoints inspectors with certificates of authority who can inspect premises, take samples and records, photograph and require production of documents (ss 14-15). Police act as inspectors in respect of certain transport smoke‑free areas (s 14A). Inspectors can require a person who is smoking to stop and can require name and address information (s 17). Non‑compliance with inspector requirements and obstruction offences carry penalties (ss 18-19). Inspectors may issue penalty notices for offences prescribed by regulation; the Fines Act applies to penalty notices (s 20A). Prosecutions are to be taken in the Local Court and may only be initiated by the Director‑General or persons prescribed by regulation (s 20).

Regulatory delegation and procedural safeguards. The Governor in Council may make regulations to cover the detail,signage, occupier obligations, inspector powers, criteria for enclosed/public spaces, determination of rooms (s 23). For removal of an exemption, the Director‑General must give written advice, reasons and at least 14 days to make submissions and must consider those submissions before declaring removal (s 13(2)).

Administrative liability. Section 21A immunises the State from monetary compensation claims arising from enactment or operation of the Act, exercise of functions under it or statements/conduct relating to regulation of smoking; the section defines the State broadly to include inspectors and the Act explicitly includes regulations and Director‑General declarations (s 21A).

These concepts create an enforcement ecosystem that combines black‑letter prohibitions with occupier responsibilities, administrative discretion for exemptions and guidance, and delegated enforcement via inspectors and police in transport contexts. The Act’s reliance on regulation (s 23) and Ministerial guidelines (s 10(3)) places considerable detail outside the primary text, while preserving prosecutorial control in the Director‑General’s hands (s 20).

This Act assigns obligations and potential liabilities across several categories of actors: individual members of the public who smoke or vape in public places; occupiers and managers of premises that are or contain smoke‑free areas; inspectors and police exercising enforcement functions; the Director‑General and the Minister (administrative decision‑makers); and the Crown (the Act binds the State, s 5). The regulations may extend or qualify who may bring proceedings and who counts as an inspector (ss 20, 14(5)).

Individuals who smoke or vape. Section 7 makes it an offence for any person to smoke in a smoke‑free area. The maximum penalty for the individual offence is five penalty units. There are limited defences: where smoking is necessary as part of a performance (s 7(2)) or where the accused proves he or she did not know and could not reasonably be expected to have known that the place was a smoke‑free area (s 7(3)). Inspectors may require a person smoking in contravention to stop (s 17(1)). The Act also contains an express statement that it does not create or preserve a right to smoke in a public place (s 21).

Occupiers and persons in charge. Occupiers of enclosed public places and commercial outdoor dining areas have a direct statutory duty not to allow smoking in those parts (s 8(1)). The penalties are tiered: for a natural person 10 penalty units and for a body corporate 50 penalty units. Occupiers have a statutory defence if they can establish they did not supply items that facilitate smoking and either lacked knowledge that smoking was occurring or took specified remedial steps on becoming aware (s 8(2)). Occupiers of smoke‑free areas must display prescribed signage (s 9(1)), subject to regulatory exemptions and a specific list of outdoor places exempted from the signage duty (s 9(3)). Where a smoke‑free area forms part of premises in which smoking is allowed elsewhere, the occupier of the smoke‑free area and the occupier of the smoking areas must take reasonable steps to prevent smoke penetrating the smoke‑free area; the Minister may issue guidelines and compliance with them is conclusive on reasonable steps (s 10(1)-(4)).

Licensed premises in the exempt area regime. The Act contemplates that certain parts of clubs, hotels, nightclubs and casinos may be designated as exempt areas under Part 3 (s 11). The historical temporary provisions (ss 11A-11C) allowed certain rooms or parts to be set aside within defined timeframes (the text specifies dates in 2005-2007). The regulations may prescribe requirements for premises containing exempt areas, including partitions, ventilation and area designation (s 12). The Director‑General may remove an exemption if statutory requirements or guidelines are not complied with, but must follow procedural steps before doing so (s 13).

Inspections and enforcement personnel. The Director‑General appoints inspectors and issues certificates of authority (s 14). Regulations may deem classes of inspectors under other legislation to be inspectors for the Act (s 14(5)-(6)). Police officers have the functions of inspectors for specific transport smoke‑free areas (s 14A). Inspectors have entry, inspection, sampling and document‑production powers (s 15). When making requirements, inspectors must identify themselves and produce their certificate on request, and inform the person of the consequences of refusal or failure to comply (s 18(3)).

Prosecutorial actors and the civil processes. Prosecutions for offences under the Act are to be taken before the Local Court (s 20(1)) and may be brought only by the Director‑General or persons or classes prescribed by regulation (s 20(2)). Inspectors may issue penalty notices for prescribed offences (s 20A), and the Fines Act applies to penalty notices.

The Crown and public authorities. The Act binds the Crown (s 5). Section 21A prevents claims for compensation by or on behalf of the State arising from enactment or operation of the Act, exercise/failure to exercise functions, or statements/conduct relating to regulation of smoking; the provision applies to the State broadly defined and includes inspectors (s 21A).

Who ultimately decides. Administration and operational decisions fall to the Director‑General (appointments, declarations under s 13, prosecutions under s 20), inspectors acting under statutory powers (ss 14-18), and the Minister through guidelines (s 10(3)) and regulations made by the Governor (s 23). The Local Court is the judicial forum for proceedings (s 20(1)). The regulations may add and modify who may bring proceedings and which offences are eligible for penalty notices (ss 20, 20A, 23).

In summary, the Act affects ordinary members of the public (including vapers), occupiers of public premises (with heightened duties for enclosed public places and commercial outdoor dining areas), owners/operators of licensed premises in the exempt regime, enforcement officers (inspectors and police), and the Director‑General and Minister as administrative decision‑makers. The regulatory design places day‑to‑day compliance obligations on occupiers and operational enforcement discretion in inspectors and the Director‑General.

The Act allocates specific duties and confers limited rights across several actors. The statutory duties are enforceable by penalty, inspector action or prosecution. The Act also sets out procedural protections for persons subject to administrative declarations or inspector requirements.

Principal duties of the public:

• Individuals must not smoke in smoke‑free areas (s 7(1)). Maximum penalty is five penalty units. There is a defence if smoking is part of a performance where smoking is necessary (s 7(2)), and an ignorance defence where the defendant proves lack of knowledge and that they could not reasonably be expected to have known the place was smoke‑free (s 7(3)).

Occupier duties:

• Occupiers of an enclosed public place and of commercial outdoor dining areas must not allow smoking to occur in those smoke‑free areas (s 8(1)). Penalties are 10 penalty units for a natural person and 50 penalty units for a body corporate.
• Occupiers have a statutory defence if they can show they did not provide ashtrays, matches or lighters (or other things that could facilitate smoking) and either did not know, and could not reasonably be expected to have known, or took immediate remedial steps on becoming aware: required the person to stop, informed them of the offence, and if the person continued, required the person to leave (s 8(2)). Subsection 8(3) clarifies that requiring a person to leave does not extinguish liability for payment for food or beverage and occupiers may require satisfaction of such liability before leaving.
• Occupiers of a smoke‑free area must display prescribed signs in the area if regulations require (s 9(1)), subject to regulatory exemptions and the list of outdoor places exempt from the signage duty (s 9(3)). The Director‑General may arrange with government bodies for sign display for outdoor places exempt from the signage duty if the government body is the occupier (s 9(4)).
• Where a smoke‑free area forms part of premises in which smoking is allowed elsewhere, the occupier of the smoke‑free area and the occupier of the smoking area must take reasonable steps to prevent smoke penetrating into the smoke‑free area (s 10(1)-(2)). The Minister can issue guidelines as to what constitutes reasonable steps and compliance with such guidelines operates as conclusive evidence of having taken all reasonable steps (s 10(3)-(4)).

Administrative duties and powers:

• The Director‑General may appoint inspectors and must issue them with certificates of authority (s 14). The Director‑General may make declarations that an exempt area ceases to be exempt if statutory or regulatory requirements or guidelines are not complied with, but must follow a prescribed notice and submissions process of at least 14 days and consider submissions before making the declaration; the declaration must be in writing and served on the occupier and may take effect immediately or on a specified later date (s 13(1)-(3)). The Director‑General may revoke such a declaration (s 13(4)).

Inspector powers and duties:

• Inspectors can enter premises at reasonable times, inspect apparatus and equipment, take photographs and recordings, take samples for analysis or as evidence, require production of records, and examine and copy documents (s 15(1)). An inspector must produce their certificate of authority on request or must not remain on premises entered where they are not otherwise entitled to enter (s 15(2)). Inspectors cannot enter parts of premises used solely for residential purposes except with consent or under a search warrant (s 15(3)).
• Inspectors may require a person who is smoking in contravention of s 7 to stop (s 17(1)). They may also require persons suspected of contraventions or occupiers of suspected premises to state name and address and to identify the occupier if the person is not the occupier (s 17(2)).
• Requirements of inspectors must be complied with unless there is a reasonable excuse; failure carries a penalty of five penalty units (s 18(1)). Providing false or misleading information in connection with an inspector requirement also carries a five‑unit penalty (s 18(2)). For a requirement to be duly made the inspector must identify themselves and, on request, produce their certificate and inform the person that refusal may be an offence (s 18(3)).

Enforcement and procedural rights:

• Inspectors may issue penalty notices for offences prescribed by regulation; the Fines Act applies (s 20A). The amount payable under a penalty notice is the amount prescribed by the regulations for the alleged offence, not exceeding the maximum court penalty (s 20A(4)).
• Prosecutions for offences under the Act are to be taken in the Local Court (s 20(1)) and may only be brought by the Director‑General or persons or classes prescribed by regulation (s 20(2)). The Act does not itself specify an internal merits review process or appeal mechanism for administrative decisions such as declarations under s 13.

Non‑compensation clause:

• Section 21A precludes monetary compensation payable by or on behalf of the State arising directly or indirectly from enactment or operation of the Act, exercise or failure to exercise functions under the Act, or statements or conduct relating to regulation of smoking. Compensation is defined broadly to include damages or any other monetary compensation, and the State is defined by reference to the Crown Proceedings Act 1988 and includes inspectors (s 21A(1)-(2)).

Regulatory rights and duties:

• The Governor may make regulations on a broad array of matters including signage, occupier requirements, inspector powers, guidelines for classifying enclosed public places and covered outside areas, and what constitutes a room for the exempt area calculations; regulations may create offences up to 5/25 penalty units (s 23).

These provisions allocate direct compliance responsibilities to occupiers and users of public spaces, procedural duties to inspectors and administrative obligations to the Director‑General and Minister. The Act ties compliance standards to Ministerial guidelines where reasonable‑steps rules apply (s 10), which affects how occupiers assess and document compliance.

The Act establishes a mix of penalty levels, administrative enforcement tools (inspectors and police), penalty notices, and prosecutorial centralisation through the Director‑General. Penalties are expressed in penalty units and differ by the offender’s status (natural person or body corporate) for particular offences.

Primary criminal penalties and notices:

• Smoking in a smoke‑free area. The core individual offence is in s 7(1) with a maximum penalty of five penalty units. Defences are limited (performance necessity s 7(2); lack of knowledge s 7(3)).
• Occupier liability. If a person smokes in contravention of s 7 in an enclosed public place or a commercial outdoor dining area, the occupier is guilty of an offence under s 8(1). Maximum penalties are 10 penalty units for a natural person and 50 penalty units for a body corporate. A statutory defence is available if the occupier can demonstrate the specified lack of facilitation and the remedial steps or lack of knowledge (s 8(2)). The occupier’s requirement to make a person leave does not extinguish persons’ payment liabilities for food and drink (s 8(3)).
• Signage failures. An occupier who fails to display prescribed signs in a smoke‑free area faces maximum penalties of 5 penalty units (natural person) and 25 penalty units (body corporate) under s 9(1).
• Failure to take reasonable steps. The duty to prevent smoke entering smoke‑free areas (s 10) attracts maximum penalties of 10 units (natural person) and 50 units (corporate) for the occupier of the smoke‑free area (s 10(1)), and corresponding penalties for occupiers of the parts where smoking is allowed (s 10(2)).
• Inspector non‑compliance and obstruction. Failure to comply with an inspector’s requirement without reasonable excuse is an offence carrying a maximum penalty of five penalty units (s 18(1)). Providing false or misleading information in response to an inspector’s requirement is also punishable by five penalty units (s 18(2)). Resisting or obstructing an inspector is an offence with a maximum penalty of five penalty units (s 19(1)), and impersonating an inspector likewise carries five units (s 19(2)).

Administrative enforcement tools:

• Inspectors, appointed by the Director‑General, have powers to enter and inspect premises at reasonable times, examine equipment, take recordings, take samples for analysis or as evidence, and require production and copying of documents (s 15(1)). Inspectors must show their certificate of authority on request and, where they lack entry power, must leave if they cannot produce it (s 15(2)). Entry into residential parts is restricted absent consent or warrant (s 15(3)).
• Inspectors may require a person smoking to stop and may require persons suspected of contravention to provide name and address and identify the occupier (s 17). For requirements to be duly made, the inspector must identify themselves and, on request, produce their certificate and inform the person that refusal may be an offence (s 18(3)).
• Police function as inspectors in respect of transport-related smoke‑free areas specified at s 6A(1)(d)-(h) (s 14A).

Penalty notices and prosecutorial control:

• Inspectors may issue penalty notices for offences prescribed by regulation as penalty notice offences (s 20A(1)-(2)). The fines regime under the Fines Act 1996 applies to penalty notices (s 20A(3)). The amount payable under a penalty notice is as prescribed in the regulations for the alleged offence, subject to the maximum criminal penalty (s 20A(4)).
• Prosecutions are to be heard in the Local Court (s 20(1)) and may only be initiated by the Director‑General or persons or classes prescribed by the regulations (s 20(2)). This centralises prosecutorial initiation and may control the volume and targeting of prosecutions.

Search warrants and evidence collection:

• An inspector may apply to an authorised officer for a search warrant where there are reasonable grounds to believe a contravention has occurred on premises (s 16(1)). Search warrants are issued by an authorised officer and their use is governed by Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (s 16(3)), thereby importing the LEPRA procedures and safeguards for execution of warrants and seizure of evidence.

Procedural protections in removal of exemptions:

• The Director‑General’s power to declare that an exempt area ceases to be exempt is subject to procedural steps: written advice of intention, reasons, at least a 14‑day opportunity to make submissions, and consideration of those submissions before making a declaration (s 13(2)). Declarations must be in writing and are served on the occupier (s 13(3)). The Director‑General may revoke declarations (s 13(4)).

Limits on State liability:

• Section 21A prevents monetary compensation claims by or on behalf of the State arising from enactment or operation of the Act, exercise of functions or statements/conduct relating to regulation of smoking. This limits financial exposure of the Crown and persons acting on behalf of the State.

Regulatory enforcement discretion:

• The regulations can prescribe which offences are penalty notice offences, the content and form of signs, exemptions from signage duties, and classes of inspectors taken to be inspectors under the Act (s 23, s 14(5)). This provides the executive branch with instruments to modulate enforcement intensity and administrative burden.

In sum, enforcement is carried out through a combination of criminal penalties, administrative penalty notices, inspector powers (including warrants under LEPRA), and prosecutorial control by the Director‑General. The Act provides multiple internal procedural safeguards for affected parties in s 13 for exempt areas and in s 18(3) for inspector requirements, while also limiting State monetary liability under s 21A.

The Act explicitly cross‑references several other statutory instruments and imports certain definitions or procedures by reference. Those cross‑references determine overlap, shared definitions, and procedural interactions.

Definitions and external statutes:

• Non‑tobacco smoking product. The Act adopts the same definition as in the Public Health (Tobacco) Act 2008 by reference (s 4). This links the definition and any statutory amendments or judicial interpretation of that term to the operation of the present Act.
• Vaping goods. The Act takes the meaning of vaping goods from the Commonwealth Therapeutic Goods Act 1989 (s 4). Consequently, the classification of an item as a vaping good for Commonwealth regulatory purposes will influence whether it falls within this Act’s definition of smoke (s 4).
• Casino definitions. The Act references the Casino Control Act 1992 for the definition of casino and gaming machine (s 10A). The exempt area regime for casino private gaming areas is therefore tied to the casino regulatory framework under that Act (ss 10A, 11, 11C).

Enforcement and search warrant procedure:

• Section 16(3) explicitly imports Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) for search warrants issued under s 16. That means the procedure, evidence thresholds, powers for entry and seizure and the safeguards applicable to search warrants under LEPRA apply to warrants under this Act.

Workplace safety and health obligations:

• Section 12(3) notes that an exemption under Part 3 does not affect any duty a person may have under the Work Health and Safety Act 2011. This provision preserves concurrent obligations for employer/occupier safety duties despite any exemption under the smoke‑free regime. Occupiers must keep workplace safety obligations in mind and cannot rely on a statutory exemption under this Act to avoid obligations under WHS law.

Regulatory and administrative interaction:

• The Act’s regulation‑making power (s 23) is broad and explicitly permits regulations about signage, occupier requirements, inspector powers, and what constitutes a room or enclosed public place. Those regulations will interact with other local government signage bylaws, building code requirements on ventilation and partitions, and liquor licensing rules that define premises like restaurants, hotels or licensed venues under the Liquor Act 2007 (s 4A references Liquor Act definitions).
• Section 9(4) allows the Director‑General to make arrangements with government or local government agencies for display of signs in outdoor public places that are exempt from the signage duty (s 9(3)). That provision contemplates operational interplay between State public health administration and local authorities.

Prosecutions, fines and enforcement process:

• Penalty notices issued under s 20A are subject to the Fines Act 1996, which governs notice content, payment, and consequences of non‑payment, and offers an alternative to court prosecution (s 20A(3)-(4)). This means the Fines Act’s recovery and enforcement mechanisms apply to penalty notices under this Act.

Crown immunity and civil claims:

• Section 21A cuts across other legal contexts by precluding monetary compensation claims against the State arising from enactment or operation of the Act, exercise or failure to exercise functions under it, or statements or conduct relating to smoking regulation. This provision interacts with general principles under the Crown Proceedings Act 1988 by curtailing one class of claims, and it applies to inspectors and other State actors (s 21A(2)).

Liquor licensing and definitions:

• The Act references the Liquor Act 2007 in defining commercial outdoor dining areas and pedestrian access points near licensed premises (s 4A, Schedule Part 2 transitional provisions). The interplay determines when certain outdoor areas adjacent to licensed premises become smoke‑free and how transitional dates (Schedule 2) applied.

Transitional provisions and temporal interaction:

• Schedule 2 contains savings and transitional provisions that affected the phasing in of parts of the Act, notably that a commercial outdoor dining area was not a smoke‑free area until 6 July 2015 (Schedule 2(2)). Transitional provisions communicate how the Act phased in obligations vis‑à‑vis other legislative changes such as the Tobacco Legislation Amendment Act 2012.

In short, the Act is not a standalone instrument; it imports definitions and procedures from the Public Health (Tobacco) Act 2008, the Therapeutic Goods Act 1989, the Casino Control Act 1992, LEPRA for search warrants, the Fines Act 1996 for penalty notices, the Work Health and Safety Act 2011 for safety duties, and the Liquor Act 2007 for certain premises classifications. Consequently, compliance and enforcement assessments require cross‑reference to those statutes and to any regulations made under this Act (s 23).

The text supplied contains inline amendment annotations referencing Acts and schedules that altered the Act at various points. The Act’s object, definitions, smoke‑free area provisions, exempt area provisions, and inspection powers have been amended across several legislative instruments. The amendment notes in the supplied text indicate the following changes (citations are as provided in the text):

• s 3 (object) shows amendments by 2012 No 56, Schedule 1 [2]; 2018 No 13, Sch 1 [1]; 2024 No 94, Sch 5[1]. The object provision has been amended on multiple occasions, indicating parliamentary restatement of policy aims.
• s 4 (definitions) shows a series of amendments: 2004 No 110, Sch 1 [1]; 2012 No 56, Sch 1 [3]-[6]; 2018 No 13, Sch 1 [2]; 2024 No 94, Sch 5[2]. This suggests the statutory definitions have been updated regularly to reflect new categories of product (for example vaping goods) and other technical adjustments.
• s 4A (commercial outdoor dining areas) was inserted by 2012 No 56, Sch 1 [7]. That insertion introduced a statutory definition for commercial outdoor dining area and attendant rules and penalties (including a penalty for failing to mark an area as not for consumption of food).
• s 6 (smoke‑free enclosed public places) was amended 2004 No 110, Sch 1 [2] and substituted 2012 No 56, Sch 1 [8]. The substitution in 2012 appears to have recalibrated the enclosed/outdoor distinctions and examples.
• s 6A (outdoor public places) was inserted by 2012 No 56, Sch 1 [8] and later amended in 2016 No 27, Sch 2.45. That insertion created the specified list of outdoor smoke‑free areas and included power for regulations to exempt particular outdoor places.
• s 8 (occupier liability) was amended in 2012 No 56, Sch 1 [9]. The amendment likely updated occupier obligations and penalties.
• s 9 (signage) was amended 2012 No 56, Sch 1 [10]. The changes included exemptions and an arrangement power for the Director‑General.
• s 10 (duty to prevent spread of smoke) was amended 2012 No 56, Sch 1 [11?]. The current text provides for Ministerial guidelines and conclusive effect of compliance with those guidelines (s 10(3)-(4)).
• Part 3 (Exempt areas) was affected by the 2004 amendments that inserted ss 10A-11C (Ins 2004 No 110, Sch 1 [4]) and subsequent amendments in 2009 No 106, Sch 5.21 [1][2] for s 10A. The insertion established the exempt area regime and the temporary exemptions (ss 11A-11C).
• s 12 was amended 2004 No 110, Sch 1 [5]-[7]; 2011 No 67, Sch 4.28. Those amendments authorised regulations about ventilation and partitions for exempt areas and preserved WHS obligations.
• s 13 was amended 2004 No 110, Sch 1 [8]-[9] specifying the Director‑General’s power and procedural requirements for removal of exemptions.
• s 14 (appointment of inspectors) was amended to permit classes of inspectors under other legislation to be prescribed as inspectors (s 14: Am 2004 No 110, Sch 1 [1]). The text shows s 14(5)-(6) referencing regulations that may identify other inspector classes.
• s 14A (police functions in transport) was inserted 2013 No 111, Sch 1.10, giving police inspector functions in transport‑related smoke‑free areas.
• s 16 (search warrants) shows amendments 2002 No 103, Sch 4.87 [1]-[3], linking the warrant regime to LEPRA.
• s 20 was amended 2007 No 94, Sch 4; 2012 No 56, Sch 1 [11] centralising prosecution functions. Section 20A (penalty notices) was inserted 2007 No 89, Sch 2.14 and substituted 2017 No 22, Sch 3.69.
• s 21 was amended 2012 No 56, Sch 1 [12] clarifying the Act does not create a right to smoke.
• s 21A (compensation not payable) was inserted 2004 No 110, Sch 1 [10] and amended 2012 No 56, Sch 1 [13] [14].
• s 22 (giving of documents) was amended 2017 No 25, Sch 1.34 to include electronic service by email.
• s 23 (regulations) was amended 2004 No 110, Sch 1 [11]; 2012 No 56, Sch 1 [15].
• Schedule 1 and Schedule 2 note amendments at 2004 No 110, Sch 1 [12]-[15]; 2012 No 56, Sch 1 [16]-[17].

The text also includes transitional provisions consequent on the Tobacco Legislation Amendment Act 2012 (Schedule part 2), which phased in certain outdoor restrictions, for example:

• A commercial outdoor dining area was not a smoke‑free area until 6 July 2015 (Schedule 2, Part 2, item 2).
• Places within 4 metres of pedestrian access points to licensed premises or restaurants were not smoke‑free under s 6A(1)(i) until 6 July 2015 (Schedule 2, Part 2, item 3).

The amendment annotations in the supplied text therefore show iterative legislative refinement, including introduction of vaping goods, creation of outdoor smoke‑free categories, procedural adjustments for inspectors and enforcement mechanisms (penalty notices), and accommodation for phased implementation. The text records the dates and schedules of amendments as given in the supplied source; for the current operative effect, the relevant amendment provisions and transitional dates should be checked against the consolidated Act and current regulations.

The supplied statutory text does not identify any judicial decisions or case law interpreting the Act. It does, however, create the enforcement pathway and procedural forum where litigation would occur: prosecutions for offences under the Act are to be taken in the Local Court (s 20(1)), and penalty notices issued under s 20A are subject to the Fines Act 1996 which provides the administrative alternative to court proceedings.

What the statutory text records that is relevant to litigation and review:

• Centralised prosecutorial control. Section 20(2) restricts who may bring proceedings for an offence under the Act to the Director‑General or persons or classes prescribed by regulation. This provision centralises the initiation of prosecutions and may influence which matters proceed to the Local Court.
• Administrative decision‑making with procedural steps. The Director‑General’s power to declare that an exempt area ceases to be an exempt area (s 13) is explicitly procedural: written advice of intention, reasons, a minimum 14‑day opportunity to make submissions and consideration of submissions are required. The Act does not, in the supplied text, provide a statutory right of appeal, merits review or an internal review route for such declarations or for other administrative decisions under the Act. The absence of an express appeal or review mechanism in the Act is a gap that, in practice, may give rise to judicial review claims in appropriate circumstances, though the Act itself does not create such remedies or procedures.
• Search warrants and LEPRA. Search warrants under s 16 import Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (s 16(3)), which contains judicially enforceable protocols for issuance and execution of warrants. Any dispute about the legality of a warrant’s issuance or execution would proceed under LEPRA and related judicial review doctrines in the courts.
• Penalty notices and the Fines Act. Penalty notices under s 20A are governed by the Fines Act 1996. That statute provides processes for payment, withdrawal and enforcement; judicial review may feature where there are contested issues about the validity of a penalty notice or enforcement steps, but the Act itself does not catalogue litigation outcomes.

Because the provided text contains no reported cases, this section cannot summarise judicial interpretation or precedent. The Act’s procedural settings,that prosecutions go to Local Court, penalty notices are available under the Fines Act, and search warrant practice follows LEPRA,define the principal litigation channels. For any specific litigation history or reported rulings, consultation of court databases and law reports will be necessary, since the Act text as supplied contains no litigation or case references.

Practitioners advising clients or occupiers should be alert to definitional breadth, delegated detail, timing and transitional rules, occupier exposure, evidentiary and procedural nuances in inspection and enforcement, and the Act’s protections for the State. The following points are sourced to the relevant sections of the Act and set out concrete mechanisms that commonly give rise to disputes or compliance failures.

1. Definition breadth , vaping and non‑tobacco products (s 4).

• The statutory definition of smoke is broad and includes aerosol or vapour generated by vaping goods and non‑tobacco smoking products (s 4). That means conduct commonly perceived as different from cigarette smoking, such as using a vaping device, falls within the prohibition where the device generates aerosol or vapour. Advisers must not assume the prohibition applies only to burning tobacco.

2. Enclosed vs outdoor distinctions and examples (s 4, s 6, s 6A, Schedule 1).

• Whether a place is an enclosed public place is a threshold legal question for many compliance decisions. The Act defines enclosed public place by reference to a ceiling or roof and being completely or substantially enclosed except for doors and passageways (s 4). Regulations may provide further guidance as to what is substantially enclosed (s 23(2)(e)). Practitioners must consult the regulations where an area is covered but not obviously enclosed.
• Schedule 1 gives examples; it is not an exhaustive list but can be persuasive when advising clients.

3. Commercial outdoor dining area definition and perimeters (s 4A).

• The definition is detailed: proximity (within 4 metres) to a seated dining area, and the 10‑metre rule for food fair stalls (s 4A(1)(b)-(c)). The seating must be provided by the occupier or operator and the area is only a seated dining area when food is being consumed or available (s 4A(2)-(3)). Operators who intermittently provide seating or where seating is provided by third parties should confirm whether their area meets the statutory test at the relevant time.

4. Historic transitional carve‑outs and timing (Schedule 2).

• The Act contains transitional clauses that deferred certain outdoor restrictions (for example commercial outdoor dining areas not being smoke‑free until 6 July 2015 per Schedule 2). While those dates may now be past, practitioners must check transitional provisions and current regulatory state when advising about phased obligations, as the text includes specific effective dates.

5. Occupier defences and evidentiary burden (s 8).

• The occupier’s statutory defence requires proof that neither the occupier nor employees provided facilitation items and that either they did not know or they took three specified steps when they became aware (require to stop, inform of offence, require to leave) (s 8(2)). Those are evidentiary requirements: occupiers should document staff training, signage, absence of ashtrays and incident reports to preserve the defence. The occupier must also be prepared to deal with liability for unpaid food or drink as s 8(3) allows occupiers to require satisfaction of such liabilities before asking a person to leave.

6. Signage exemptions and Director‑General arrangements (s 9).

• Regulators may exempt classes of public places from signage duties (s 9(2)) and s 9(3) lists outdoor places that are exempt from the signage duty (for example places within 10 metres of children’s play equipment). However, s 9(4) gives the Director‑General power to arrange sign display where a government or local government body is the occupier, creating potential coordination issues for privately occupied versus publicly occupied spaces.

7. Reasonable steps and Ministerial guidelines (s 10).

• The duty to prevent smoke penetration invokes a reasonableness standard but the Minister can issue guidelines that, if followed, are conclusive evidence of reasonable steps (s 10(3)-(4)). Occupiers should obtain and follow any current guidelines and document compliance because adherence is decisive; absence of guidelines or divergence may entail uncertainty.

8. Inspector identification and consequence of non‑production (s 15(2), s 18(3)).

• An inspector who cannot produce a certificate on request must not remain on premises if they lack entry authority (s 15(2)). For inspectors’ requirements to be duly made, the inspector must identify and produce their certificate and inform the person that refusing may be an offence (s 18(3)). Non‑compliance with these procedural requirements can be material in defending a breach notice or prosecution.

9. Who can prosecute (s 20(2)) and penalty notice designations (s 20A).

• Only the Director‑General or specified persons (to be prescribed by regulation) may bring prosecutions (s 20(2)). This centralisation affects enforcement predictability and the prospects of private enforcement. Inspectors can issue penalty notices only for offences prescribed in regulations; the Fines Act governs notice enforcement (s 20A).

10. State liability restriction (s 21A).

• Section 21A bars monetary compensation by or on behalf of the State arising from enactment or operation of the Act or statements/conduct relating to smoking regulation. This prevents claims for damages against the State in these contexts and shifts compensation risk to private actors in many scenarios.

11. Interaction with other regimes , WHS, LEPRA, Liquor Act (s 12(3), s 16(3), s 4A).

• Exemptions under this Act do not relieve obligations under the Work Health and Safety Act 2011 (s 12(3)). Search warrants follow LEPRA procedures (s 16(3)), so practitioners should anticipate cross‑agency enforcement procedures. Definitions of licensed premises and restaurants are drawn from the Liquor Act for the commercial outdoor dining definition (s 4A).

12. No express appeal mechanism for Director‑General declarations (s 13).

• The Act prescribes pre‑declaration procedural rights (notice, reasons, at least 14 days to make submissions) but does not set out a statutory appeal or merits review process in the text supplied. That absence is a practical “gotcha” for occupiers who may face a declaration taking effect without an express internal appeal route under the Act.

Practically, the common compliance failures arise from poor signage, inadequate staff training to enforce the no‑smoking rule, failing to follow Ministerial guidelines on preventing smoke penetration, and not maintaining records or incident logs to support statutory defences (s 8(2), s 10(3)-(4)). Advisers should also be alert to the Act’s delegation of details to regulations and to coordinate with local authorities and licensing frameworks where overlaps occur.

Compliance under this Act requires occupiers, managers and operators to adopt a structured approach: identify whether premises or parts are smoke‑free, meet signage and procedural obligations, implement measures to prevent smoke penetration, train staff in enforcement steps and documentation, and co‑operate with inspectors and police where they exercise functions. The following practical checklist is grounded in the Act’s provisions.

1. Determine whether the premises or part is a smoke‑free area (ss 4, 6, 6A, Schedule 1).

• Check whether the space is an enclosed public place as defined in s 4 and therefore automatically smoke‑free under s 6. Use Schedule 1 for illustrative examples.
• For outdoor premises, review s 6A(1)(a)-(l) to determine if the area is a prescribed smoke‑free outdoor place (within 10m of children’s play equipment, swimming pool complex, spectator areas for organised sporting events when held, passenger railway platforms, ferry wharves, light rail stops, bus stops, taxi ranks, within 4m of pedestrian access points, commercial outdoor dining areas, hospital designated areas, or other places prescribed by regulation). Check regulations for any additional prescribed areas or exemptions (s 6A(4)).

2. For commercial outdoor dining areas, apply the statutory tests in s 4A.

• Confirm whether seating is provided by the occupier/operator and whether food is being consumed or available, and measure proximity rules for pedestrian access points and food fair stalls (s 4A(1)-(4)). Be aware of the penalty provisions for wrongly designating an area as not for consumption of food (s 4A(5)).

3. Display prescribed signage and document exemptions (s 9).

• Display the signs required by the regulations within smoke‑free areas in the manner prescribed (s 9(1)). If a place is exempt from signage under s 9(2) or s 9(3), document the basis for exemption. Where the occupier is a government or local authority, liaise with the Director‑General where arrangements for sign display exist (s 9(4)).

4. Prevent smoke penetration and follow Ministerial guidelines (s 10).

• If smoking is allowed in some parts of the premises, take reasonable steps to prevent smoke penetrating smoke‑free areas (s 10(1)-(2)). Obtain and apply any current Ministerial guidelines on reasonable steps (s 10(3)). Compliance with the guidelines is conclusive proof of having taken reasonable steps (s 10(4)), so retain documentation showing adherence to guideline measures (ventilation, partitions, spatial layout, operational practices).

5. Occupier procedures for dealing with persons who smoke (s 8).

• Train staff to implement the occupier defence measures in s 8(2): do not provide ashtrays or items facilitating smoking; if a person is smoking, require them to stop, inform them that smoking in the area is an offence, and