This law creates legally defined smoke-free areas — automatically covering enclosed public places and many specified outdoor spots — and bans smoking or vaping in them. It requires occupiers to display signs, take reasonable steps to prevent smoke penetration, and exposes individuals and occupiers to fines or prosecution, with limited exemptions for certain licensed venues.
It matters because it aims to protect public health by reducing exposure to smoke/aerosol, shifting compliance costs and enforcement duties to businesses, inspectors and regulators whose detailed rules will shape practical impact.
This Act makes specified public places smoke-free and creates a regulatory and enforcement framework to prohibit smoking (including vaping goods and non‑tobacco smoking products where they generate smoke, aerosol or vapour) in those places. The object is stated as promoting public health by reducing exposure to tobacco and other smoke, as well as aerosol or vapour generated by vaping goods, in certain public places (s 3). The statutory definition of smoke expressly covers the use or control of tobacco products, non‑tobacco smoking products and vaping goods that generate smoke, aerosol or vapour (s 4).
Mechanically, the Act does the following:
Declares that every enclosed public place is a smoke‑free area (s 6) and lists example enclosed public places in Schedule 1 (for example, shopping centres, restaurants, schools, public transport vehicles and hospitals). The term enclosed public place is defined in s 4.
Identifies specific outdoor public places that are smoke‑free, such as areas within 10 metres of children’s play equipment, swimming pool complexes, organised spectator areas during an event, passenger railway platforms, ferry wharves, light rail stops, bus stops, taxi ranks, places within 4 metres of pedestrian access points, and commercial outdoor dining areas (s 6A).
Prohibits smoking in smoke‑free areas and provides a maximum penalty for individuals (s 7).
Imposes direct duties on occupiers of certain smoke‑free areas (enclosed public places and commercial outdoor dining areas) not to allow smoking and prescribes penalties and defences (s 8).
Prescribes signage duties for occupiers (s 9), duties to prevent smoke penetration between parts of premises (s 10) and empowers the Minister to issue guidelines on reasonable steps (s 10(3)-(4)).
Current sections
Direct links to the current provisions in Smoke-free Environment Act 2000.
This Act commences on a day or days to be appointed by proclamation.
3
Object of Act
3 Object of Act
3 Object of Act
The object of this Act is to promote public health by reducing exposure to tobacco and other smoke, as well as aerosol or vapour (whether or not containing nicotine) generated by vaping goods, in certain public places.
s 3: Am 2012 No 56, Sch 1 [2]; 2018 No 13, Sch 1 [1]; 2024 No 94, Sch 5[1].
4
Definitions
4 Definitions
4 Definitions
In this Act—
certificate of authority means a certificate of authority referred to in section 14.
commercial outdoor dining area has the meaning given in section 4A.
Director-General means the Director-General of the Department of Health.
enclosed public place means a public place that has a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed, whether permanently or temporarily.
exempt area has the meaning given by section 11.
exercise a function includes perform a duty.
function includes a power, authority or duty.
inspector means an inspector appointed under section 14.
occupier of premises or a part of premises means a person having the management or control, or otherwise being in charge, of those premises or part.
outdoor public place means a public place that is not an enclosed public place.
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, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise).
smoke means use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or vaping good that is generating, whether or not by burning—
(a) smoke, or
(b) an aerosol or vapour.
smoke-free area means a smoke-free area under section 6 or 6A.
vehicle means a train, bus, tram, aeroplane, taxi or hire car, or ferry or other vessel.
s 4: Am 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].
4A
Commercial outdoor dining areas
4A Commercial outdoor dining areas
4A Commercial outdoor dining areas
(1) In this Act, commercial outdoor dining area means an outdoor public place that is—
(a) a seated dining area, or
(b) within 4 metres of a seated dining area on premises that are licensed premises under the Liquor Act 2007 or the premises of a restaurant as defined in that Act, or
(c) within 10 metres of a place at a food fair where food is sold or supplied for consumption at the event, with a food fair being an organised event at which the principal activities are the sale or supply of food for consumption at the event and the consumption of that food.
(2) A seated dining area is an area in which seating is provided and in which food that has been purchased and served on plates or packaged for immediate consumption is consumed. The seating must have been provided by the occupier of the premises where the food is purchased or by the operator of the business from which the food is purchased.
(3) An area is only a seated dining area when food is being consumed there or is available to be purchased and consumed there.
(4) An area is not a seated dining area if the area is designated as not being for the consumption of food by the display within the area of signs complying with the regulations.
(5) The occupier of an area designated for the purposes of subsection (4) as not being for the consumption of food must take reasonable steps to ensure that the consumption of food does not occur in the area.
Maximum penalty—
(a) 10 penalty units, in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(6) In this section, food does not include drink.
s 4A: Ins 2012 No 56, Sch 1 [7].
5
Act to bind Crown
5 Act to bind Crown
5 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
Part 2
Prohibition on smoking in smoke-free areas
Part 2 Prohibition on smoking in smoke-free areas
Part 2 Prohibition on smoking in smoke-free areas
6
Smoke-free areas—enclosed public places
6 Smoke-free areas—enclosed public places
6 Smoke-free areas—enclosed public places
(1) Every enclosed public place is a smoke-free area for the purposes of this Act.
(2) Schedule 1 contains a list of examples of enclosed public places that are smoke-free areas (irrespective of the name by which the particular place is known).
(3) An enclosed public place is not a smoke-free area if it is an exempt area (see section 11).
s 6: Am 2004 No 110, Sch 1 [2]. Subst 2012 No 56, Sch 1 [8].
6A
Smoke-free areas—outdoor public places
6A Smoke-free areas—outdoor public places
6A Smoke-free areas—outdoor public places
(1) An outdoor public place is a smoke-free area for the purposes of this Act if it is any of the following places (or part of any of those places)—
(a) a place that is within 10 metres of children’s play equipment but only if the children’s play equipment is in an outdoor public place,
(b) a swimming pool complex,
(c) an area set aside for or being used by spectators to watch an organised sporting event at a sports ground or other recreational area, but only when an organised sporting event is being held there,
(d) the platform of a passenger railway or light rail station,
(e) a ferry wharf,
(f) a light rail stop (with light rail stop to include any area where persons queue or gather when waiting at a light rail stop),
(g) a bus stop (with bus stop to include any area where persons queue or gather when waiting at a bus stop),
(h) a taxi rank (with taxi rank to include any area where persons queue or gather when waiting at a taxi rank),
(i) a place that is within 4 metres of a pedestrian access point to a building (as provided by subsection (2)),
(j) a commercial outdoor dining area,
(k) a place at a public hospital, health institution or health service under the Health Services Act 1997 that is designated as a smoke-free area by a by-law or regulation under that Act and notified by signs displayed in, or at an entrance to, any such area,
(l) any other outdoor public place that is prescribed by the regulations as a smoke-free area.
(2) A pedestrian access point is an entrance to or exit from a building for use by pedestrians, but does not include—
(a) an entrance to or exit from a building that is used only for residential purposes (including a boarding house and a building in a caravan park), or
(b) an entrance to or exit from a building that is used partly for residential purposes and partly for other purposes if the entrance or exit concerned is used solely for entry to or exit from that part of the building that is used for residential purposes, or
(c) an emergency exit that is locked to entry.
(3) It is a defence to a prosecution for the offence of smoking in a smoke-free area that is a light rail stop, bus stop, taxi rank or within 4 metres of a pedestrian access point to a building if it is established that the accused was smoking only while passing through the smoke-free area and did not remain in the smoke-free area while smoking.
(4) The regulations may exempt a specified outdoor public place or class of outdoor public places from being a smoke-free area under this section.
s 6A: Ins 2012 No 56, Sch 1 [8]. Am 2016 No 27, Sch 2.45.
7
Offence of smoking in smoke-free area
7 Offence of smoking in smoke-free area
7 Offence of smoking in smoke-free area
(1) A person must not smoke in a smoke-free area.
Maximum penalty—5 penalty units.
(2) A person who performs in a theatre or other performance space does not commit an offence under this section by smoking during the performance if smoking is a necessary part of the performance.
(3) It is a defence to a prosecution for an offence under subsection (1) if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the place in which the person was smoking was a smoke-free area.
8
Occupier not to allow smoking in certain smoke-free areas
8 Occupier not to allow smoking in certain smoke-free areas
8 Occupier not to allow smoking in certain smoke-free areas
(1) If a person smokes in contravention of section 7 in any of the following smoke-free areas, the occupier of the smoke-free area is guilty of an offence—
(a) any enclosed public place,
(b) a commercial outdoor dining area.
Maximum penalty—
(a) 10 penalty units, in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(2) It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes that neither the defendant nor any employee or agent of the defendant provided (otherwise than by sale) any ashtray, matches or lighter (or other thing that could facilitate smoking) in the smoke-free area concerned and that—
(a) neither the defendant nor any employee or agent of the defendant knew, or could reasonably be expected to have known, that the person concerned was smoking in the smoke-free area, or
(b) as soon as the defendant or any employee or agent of the defendant became aware that the person was smoking in the smoke-free area, the defendant (or that employee or agent of the defendant)—
(i) required the person to stop smoking in the smoke-free area, and
(ii) informed the person that the person was committing an offence by smoking in the smoke-free area, and
(iii) if the person continued to smoke after having been required to stop, required the person to leave the smoke-free area.
(3) A requirement under subsection (2) (b) (iii) that a person leave a smoke-free area—
(a) does not affect any liability (whether arising under an Act, contract or otherwise) of the person to pay for any food or beverage supplied to or ordered by the person (whether or not it has been consumed), and
(b) may include a requirement that the person satisfy, or make arrangements for satisfying, any such liability before the person leaves the smoke-free area.
s 8: Am 2012 No 56, Sch 1 [9].
9
Occupier to display signs
9 Occupier to display signs
9 Occupier to display signs
(1) The occupier of a smoke-free area must not fail to display within that area the signs (if any) prescribed by the regulations, in the manner (if any) prescribed by the regulations.
Maximum penalty—
(a) 5 penalty units, in the case of a natural person, or
(b) 25 penalty units, in the case of a body corporate.
(2) The regulations may exempt any public place, or class of public place, from subsection (1).
(3) The following outdoor public places are exempt from subsection (1)—
(a) a place that is within 10 metres of children’s play equipment,
(b) a sports ground or other recreational area, unless the regulations otherwise provide in a particular case or class of cases,
(c) a light rail stop,
(d) a bus stop,
(e) a taxi rank,
(f) a place that is a smoke-free area because it is within 4 metres of a pedestrian access point to a building.
(4) The Director-General may enter into arrangements with any government or local government agency or body for the display of signs relating to smoking in an outdoor public place that is exempt from subsection (1) and in respect of which the government or local government agency or body is the occupier.
s 9: Am 2012 No 56, Sch 1 [10].
10
Duty to prevent spread of smoke
10 Duty to prevent spread of smoke
10 Duty to prevent spread of smoke
(1) If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the smoke-free area must take reasonable steps to prevent smoke caused by smoking in the other parts of those premises from penetrating the smoke-free area.
Maximum penalty—
(a) 10 penalty units in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(2) If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the other parts of those premises in which smoking is allowed must take reasonable steps to prevent smoke caused by smoking in those other parts from penetrating the smoke-free area.
Maximum penalty—
(a) 10 penalty units in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(3) The Minister may issue guidelines from time to time as to what constitutes reasonable steps to prevent the penetration of smoke into smoke-free areas.
(4) An occupier who, in relation to premises or a part of premises, complies with any guidelines in force for the time being under subsection (3) is to be considered as having taken all reasonable steps as referred to in subsections (1) and (2) in relation to those premises or that part.
Part 3
Exempt areas
Part 3 Exempt areas
Part 3 Exempt areas
pt 3, hdg: Am 2004 No 110, Sch 1 [3].
10A
Definitions
10A Definitions
10A Definitions
(1) In this Part—
bar room means a room in which drinks are ordered, served and consumed, but does not include a gaming machine room or a recreation room.
casino means premises, or part of premises, defined as a casino for the time being under section 19 of the Casino Control Act 1992 and includes the whole or a specified part of any premises the subject of an order under section 89 (3) of that Act.
casino private gaming area means an area in a casino that is used substantially for gaming by international visitors to the casino other than an area used substantially for the purposes of gaming machines.
gaming machine room means a room used substantially for the purposes of gaming machines.
hotel means any premises that are the subject of a hotel licence in force under the Liquor Act 2007.
nightclub means any premises that are the subject of an on-premises licence in force under the Liquor Act 2007 that relates to a public entertainment venue (other than a cinema or theatre).
recreation room means a room used substantially for the purposes of games or other recreational activities other than gaming machines.
thoroughfare means an area set aside as a thoroughfare but does not include an entrance to an exempt area.
(2) In this Part, any reference to an area or room does not include a reference to any area or room, or part of an area or room, that is not an enclosed public place.
s 10A: Ins 2004 No 110, Sch 1 [4]. Am 2009 No 106, Sch 5.21 [1] [2].
11
Meaning of “exempt area”
11 Meaning of “exempt area”
11 Meaning of “exempt area”
In this Act, exempt area, in relation to a club, hotel, nightclub or casino, means the area set aside in accordance with section 11A or 11B or a casino private gaming area, but does not include any area—
(a) required to be designated as a smoke-free area under regulations referred to in section 12, or
(b) that is the subject of a declaration in force under section 13.
s 11: Am 2003 No 52, Sch 6 [1] [2]. Subst 2004 No 110, Sch 1 [4].
11A
Temporary exemption for areas of a club, hotel, nightclub or casino from 3 January 2005 until 4 July 2005
11A Temporary exemption for areas of a club, hotel, nightclub or casino from 3 January 2005 until 4 July 2005
11A Temporary exemption for areas of a club, hotel, nightclub or casino from 3 January 2005 until 4 July 2005
(1) On or after 3 January 2005 and before 4 July 2005, the bar rooms, gaming machine rooms and recreation rooms in a club, hotel, nightclub or casino may be set aside as an exempt area.
(2) However, the following areas are not to be set aside as an exempt area or as part of an exempt area—
(a) any dining area,
(b) any counter at which drinks or food are ordered or served,
(c) one bar room, but only in premises where there is more than one bar room,
(d) one area used substantially for the purposes of gambling (whether or not with gaming machines), but only in premises where there is more than one such area,
(e) one recreation room for each game or recreational activity offered at the premises, but only in premises where there is more than one recreation room offering that game or activity.
ss 11A–11C: Ins 2004 No 110, Sch 1 [4].
11B
Temporary exemption for areas of a club, hotel, nightclub or casino from 4 July 2005 until 2 July 2007
11B Temporary exemption for areas of a club, hotel, nightclub or casino from 4 July 2005 until 2 July 2007
11B Temporary exemption for areas of a club, hotel, nightclub or casino from 4 July 2005 until 2 July 2007
(1) In this section—
room means bar room, gaming machine room or recreation room.
(2) On or after 4 July 2005 and before 2 July 2007, one room, or one part of one room, in a club, hotel, nightclub or casino may be set aside as the exempt area.
(3) The exempt area under this section, when expressed as a percentage of the total area of all the rooms in the club, hotel, nightclub or casino, must not exceed—
(a) 50% on or after 4 July 2005 and before 3 July 2006, or
(b) 25% on or after 3 July 2006 and before 2 July 2007.
(4) Despite subsection (3), if the total area of all the rooms in the club, hotel, nightclub or casino does not exceed 100 square metres, the exempt area under this section, when expressed as a percentage of the total area of all the rooms in the club, hotel, nightclub or casino, must not exceed 50% on or after 4 July 2005 and before 2 July 2007.
(5) The following areas are not to be set aside as an exempt area or as part of an exempt area under this section and are not to be taken into account when determining the area of a room or rooms for the purposes of this section—
(a) a dining area, toilet area, foyer, lobby, thoroughfare, dance floor or auditorium,
(b) a counter at which drinks or food are ordered or served,
(c) a casino private gaming area.
(6) Subject to subsection (3), the Minister may authorise a club, hotel, nightclub or casino to set aside a second room (or part of a second room) as part of the exempt area under subsection (2). The granting of the authorisation and the authority conferred by the authorisation are subject to any requirements set out in the regulations (including with respect to the criteria to be met before an authorisation may be granted).
ss 11A–11C: Ins 2004 No 110, Sch 1 [4].
11C
Review of casino private gaming area exemption
11C Review of casino private gaming area exemption
11C Review of casino private gaming area exemption
(1) The Minister is to review regularly the exemption for a casino private gaming area to determine whether the exemption is justified on the grounds of maintaining parity with the smoking restrictions in casinos in other States and Territories.
(2) A review is to be undertaken within one month after 1 January each year and the first such review is to take place in 2006.
(3) A report on the outcome of each review is to be tabled in each House of Parliament no later than 1 June of the year in which the review is undertaken.
ss 11A–11C: Ins 2004 No 110, Sch 1 [4].
12
Premises containing exempt areas to comply with certain requirements
12 Premises containing exempt areas to comply with certain requirements
12 Premises containing exempt areas to comply with certain requirements
(1) The regulations may make provision for or with respect to requirements with which premises containing an exempt area must comply.
(2) Without limiting the generality of subsection (1), the regulations may make provision for or with respect to any one or more of the following in relation to any premises containing an exempt area—
(a) requirements relating to the erection of partitions or barriers to prevent the penetration of smoke into smoke-free areas,
(b) requirements relating to ventilation,
(c) requirements as to the designation of areas as smoke-free areas.
s 12: Am 2004 No 110, Sch 1 [5]–[7]; 2011 No 67, Sch 4.28.
13
Removal of exemption by Director-General
13 Removal of exemption by Director-General
13 Removal of exemption by Director-General
(1) The Director-General may declare that any particular area ceases to be an exempt area if satisfied that—
(a) any requirement of this Act or the regulations has not been complied with in relation to the premises containing the exempt area, or
(b) any guidelines in force under section 10 have not been complied with in relation to the premises containing the exempt area.
(2) The Director-General may only make a declaration under this section—
(a) after having given the occupier of the premises concerned—
(i) written advice of the Director-General’s intention to make the declaration, and
(ii) the reasons why the Director-General intends to make the declaration, and
(iii) an opportunity to make submissions within the period specified in the advice (being not less than 14 days), and
(b) after having considered any submissions made by the occupier within that period.
(3) A declaration under this section—
(a) must be in writing, and
(b) must be given to the occupier of the premises concerned, and
(c) takes effect on the day on which the declaration is given or on a later day specified in the notice.
(4) The Director-General may, at any time, revoke a declaration under this section by notice in writing given to the occupier of the premises concerned.
s 13: Am 2004 No 110, Sch 1 [8] [9].
Part 4
Inspection of premises
Part 4 Inspection of premises
Part 4 Inspection of premises
14
Appointment of inspectors
14 Appointment of inspectors
14 Appointment of inspectors
(1) The Director-General may, by instrument in writing, appoint persons to be inspectors for the purposes of this Act.
(2) An inspector has such functions as are conferred on the inspector by this Act or the regulations.
(3) Each person appointed as an inspector is to be issued with a certificate of authority that states the name of the inspector and the fact of his or her appointment.
(4) A former inspector must not, without reasonable excuse, fail to return his or her certificate of authority to the Director-General on demand.
Maximum penalty—1 penalty unit.
(5) The regulations may prescribe classes of inspectors (however described) appointed under other legislation who are to be taken to be inspectors appointed under this section.
(6) If an inspector of a class so prescribed has a certificate of authority (however described) by virtue of other legislation under which he or she is an inspector—
(a) the certificate of authority may be used by the inspector for the purposes of this Act as if it had been issued under this section, and
(b) subsection (4) does not apply to the certificate of authority.
14A
Police have functions of inspectors in transport-related smoke-free areas
14A Police have functions of inspectors in transport-related smoke-free areas
14A Police have functions of inspectors in transport-related smoke-free areas
A police officer has the functions of an inspector in respect of a person smoking in a smoke-free area referred to in section 6A (1) (d)–(h).
s 14A: Ins 2013 No 111, Sch 1.10.
15
Powers of inspectors to enter premises
15 Powers of inspectors to enter premises
15 Powers of inspectors to enter premises
(1) For the purposes of this Act, an inspector may, at any reasonable time, do any one or more of the following—
(a) alone, or with such other persons as the inspector considers necessary, enter and inspect any premises,
(b) examine and inspect any apparatus or equipment in any premises,
(c) take such photographs, films and audio, video and other recordings as the inspector considers necessary,
(d) for the purpose of analysis, take samples of any thing to determine whether the provisions of this Act and the regulations are being complied with in relation to the premises,
(e) take samples of any thing, other than for the purpose of analysis, that the inspector reasonably believes may be used as evidence that an offence has been, or is being, committed under this Act or the regulations,
(f) require records or documents to be produced for inspection,
(g) examine, inspect and copy any such records or documents and, for that purpose, take away and retain (for such time as may, for that purpose, be reasonably necessary) any such records or documents.
(2) An inspector who enters any premises in accordance with this section that he or she is not otherwise entitled to enter (unless under the authority of a search warrant) is not to remain on the premises if, on request by the occupier of the premises, the inspector does not produce his or her certificate of authority.
(3) This section does not authorise entry into any part of premises that is being used solely for residential purposes, except—
(a) with the consent of the occupier of the premises, or
(b) under the authority of a search warrant.
16
Search warrants
16 Search warrants
16 Search warrants
(1) An inspector may apply to an authorised officer for a search warrant if the inspector has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises.
(2) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant, when accompanied by a police officer, and such other person (if any) as is named in the warrant—
(a) to enter the premises concerned, and
(b) to search the premises for evidence of a contravention of this Act or the regulations.
(1) An inspector may require a person who is smoking in contravention of section 7 to stop smoking in contravention of that section.
(2) An inspector may at any time require a person by whom the inspector reasonably suspects any provision of this Act or the regulations is being or has been contravened, or who is apparently the occupier of premises where such a contravention is occurring or evidently has occurred, to state his or her name and address and (if the person is not the occupier of the premises) the name of the occupier of the premises.
18
Failure to comply with directions or requirements of inspectors
18 Failure to comply with directions or requirements of inspectors
18 Failure to comply with directions or requirements of inspectors
(1) A person must not, without reasonable excuse, fail to comply with a requirement of an inspector duly made under this Part.
Maximum penalty—5 penalty units.
(2) A person must not, in connection with a requirement of an inspector made under this Part, provide any information or produce any document that the person knows is false or misleading in a material particular.
Maximum penalty—5 penalty units.
(3) A requirement under this Part is not duly made unless, at the time of the making of the requirement—
(a) the inspector has identified himself or herself to the person of whom the requirement is made as an inspector and, on request, produced his or her certificate of authority, and
(b) the person is informed by the inspector that a refusal or failure to comply with the requirement may constitute an offence.
19
Obstruction or impersonation of inspectors
19 Obstruction or impersonation of inspectors
19 Obstruction or impersonation of inspectors
(1) A person must not, without reasonable excuse, resist, obstruct, or attempt to obstruct, an inspector in the exercise of the inspector’s functions under this Act.
Maximum penalty—5 penalty units.
(2) A person must not impersonate an inspector.
Maximum penalty—5 penalty units.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
19A
19A
19A (Repealed)
20
Proceedings for offences
20 Proceedings for offences
20 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be taken before the Local Court.
(2) Proceedings for an offence against this Act or the regulations may only be brought by—
(a) the Director-General, or
(b) a person or a member of a class of persons prescribed by the regulations for the purposes of this section.
Section 20A provides for inspectors to serve penalty notices.
s 20: Am 2007 No 94, Sch 4; 2012 No 56. Sch 1 [11].
20A
Penalty notices
20A Penalty notices
20A Penalty notices
(1) An inspector may issue a penalty notice to a person if it appears to the inspector that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
s 20A: Ins 2007 No 89, Sch 2.14. Subst 2017 No 22, Sch 3.69.
21
Act does not create right to smoke
21 Act does not create right to smoke
21 Act does not create right to smoke
Nothing in this Act is to be construed as creating or preserving a right of a person to smoke in a public place.
s 21: Am 2012 No 56, Sch 1 [12].
21A
Compensation not payable
21A Compensation not payable
21A Compensation not payable
(1) Compensation is not payable by or on behalf of the State arising directly or indirectly from any of the following matters occurring before or after the commencement of this section—
(a) the enactment or operation of this Act or any Act that amends this Act,
(b) the exercise by any person of a function under this Act or a failure to exercise any such function,
(c) any statement or conduct relating to the regulation of smoking in public places.
(2) In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
statement includes a representation of any kind—
(a) whether made verbally or in writing, and
(b) whether negligent, false or misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes an officer, employee or agent of the Crown and an inspector appointed under section 14.
this Act includes any regulation made under this Act or any declaration made by the Director-General under section 13.
s 21A: Ins 2004 No 110, Sch 1 [10]. Am 2012 No 56, Sch 1 [13] [14].
22
Giving of documents
22 Giving of documents
22 Giving of documents
Any notice or other document that is required by or under this Act to be given to a person may be given—
(a) by delivering it personally to the person to whom it is addressed, or
(b) by delivering to the place of residence or business of the person to whom it is addressed and by leaving it there for the person with some other person, or
(c) by posting it to the person to whom it is addressed to the person’s place of residence or business last known to the person sending the document, or
(d) by email to an email address specified by the person to whom it is addressed for being given documents of that kind, or
(e) by any other method authorised by the regulations for the service of documents of that kind.
s 22: Am 2017 No 25, Sch 1.34.
23
Regulations
23 Regulations
23 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to the following—
(a) the display within public places of signs relating to smoking,
(b) the content, dimensions and location of those signs,
(c) the requirements to be observed by occupiers of public places to facilitate compliance with this Act and the regulations,
(d) the powers of inspectors,
(e) guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of this Act,
(f) the determination of what is a room (including a bar room, gaming machine room or recreation room) for the purposes of this Act.
(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units in the case of a natural person and 25 penalty units in the case of a body corporate.
s 23: Am 2004 No 110, Sch 1 [11]; 2012 No 56, Sch 1 [15].
Examples of places that are smoke-free if they are enclosed public places
Schedule 1 Examples of places that are smoke-free if they are enclosed public places
Schedule 1 Examples of places that are smoke-free if they are enclosed public places
(Section 6)
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
sch 1: Am 2004 No 110, Sch 1 [12] [13].
Schedule 2
Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
(Section 26)
sch 2: Am 2004 No 110, Sch 1 [14] [15]; 2012 No 56, Sch 1 [16] [17].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Smoke-free Environment Act 2000.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Object of Act
3 Object of Act
3 Object of Act
The object of this Act is to promote public health by reducing exposure to tobacco and other smoke, as well as aerosol or vapour (whether or not containing nicotine) generated by vaping goods, in certain public places.
s 3: Am 2012 No 56, Sch 1 [2]; 2018 No 13, Sch 1 [1]; 2024 No 94, Sch 5[1].
4 Definitions
4 Definitions
4 Definitions
In this Act—
certificate of authority means a certificate of authority referred to in section 14.
commercial outdoor dining area has the meaning given in section 4A.
Director-General means the Director-General of the Department of Health.
enclosed public place means a public place that has a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed, whether permanently or temporarily.
exempt area has the meaning given by section 11.
exercise a function includes perform a duty.
function includes a power, authority or duty.
inspector means an inspector appointed under section 14.
non-tobacco smoking product has the same meaning as in the Public Health (Tobacco) Act 2008.
occupier of premises or a part of premises means a person having the management or control, or otherwise being in charge, of those premises or part.
outdoor public place means a public place that is not an enclosed public place.
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, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise).
smoke means use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or vaping good that is generating, whether or not by burning—
Establishes a regime for exempt areas for clubs, hotels, nightclubs and casinos (Pt 3, ss 10A-13), including temporary historical provisions and a mechanism by which the Director‑General can remove an exemption after procedural steps (s 13).
Creates inspection, entry and enforcement powers: appointment of inspectors with certificates of authority (s 14), police functions as inspectors for certain transport areas (s 14A), entry and inspection powers (s 15), search warrant procedures tied to LEPRA (s 16), powers to require a smoker to stop and to require name and address information (s 17), and offences for non‑compliance with inspector requirements and obstruction (ss 18-19).
Directs that enforcement proceedings are to be taken in the Local Court (s 20) and allows inspectors to issue penalty notices where the regulations so prescribe (s 20A). The regulations may set penalty notice amounts up to the maximum set by the Act.
Provides administrative features on service of documents (s 22), regulation‑making powers (s 23), and a non‑compensation clause preventing monetary claims against the State arising from the Act or administration of it (s 21A).
The Act also delegates considerable detail to regulations: signage design and placement, classes of inspectors, criteria for determining enclosed/public spaces, definitions of rooms for exempt area calculations and which offences are penalty notice offences (s 23). The Director‑General has administrative discretion to declare the removal of exemptions following a procedural process (s 13). The inspection and enforcement architecture centralises operational decision‑making in appointed inspectors and the Director‑General, while reserving prosecutions to the Director‑General or prescribed persons (s 20).
All statutory citations in this note are to the sections in the text supplied: definitions (s 4), smoke‑free area rules (ss 6, 6A), offences and occupier duties (ss 7-10), exempt‑area regime (ss 10A-13), inspection and enforcement (ss 14-19, 20A), administrative rules (ss 21-23), and examples and savings (Schedules 1-2).
Main concepts
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).
Who it affects
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.
Key duties and rights
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.
Penalties and enforcement
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.
How it interacts with other laws
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).
Amendment history
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.
Litigation history
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.
Gotchas
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
How to comply
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.
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)).
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)).
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)).
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).
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
vehicle means a train, bus, tram, aeroplane, taxi or hire car, or ferry or other vessel.
s 4: Am 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].
4A Commercial outdoor dining areas
4A Commercial outdoor dining areas
4A Commercial outdoor dining areas
(1) In this Act, commercial outdoor dining area means an outdoor public place that is—
(a) a seated dining area, or
(b) within 4 metres of a seated dining area on premises that are licensed premises under the Liquor Act 2007 or the premises of a restaurant as defined in that Act, or
(c) within 10 metres of a place at a food fair where food is sold or supplied for consumption at the event, with a food fair being an organised event at which the principal activities are the sale or supply of food for consumption at the event and the consumption of that food.
(2) A seated dining area is an area in which seating is provided and in which food that has been purchased and served on plates or packaged for immediate consumption is consumed. The seating must have been provided by the occupier of the premises where the food is purchased or by the operator of the business from which the food is purchased.
(3) An area is only a seated dining area when food is being consumed there or is available to be purchased and consumed there.
(4) An area is not a seated dining area if the area is designated as not being for the consumption of food by the display within the area of signs complying with the regulations.
(5) The occupier of an area designated for the purposes of subsection (4) as not being for the consumption of food must take reasonable steps to ensure that the consumption of food does not occur in the area.
Maximum penalty—
(a) 10 penalty units, in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(6) In this section, food does not include drink.
s 4A: Ins 2012 No 56, Sch 1 [7].
5 Act to bind Crown
5 Act to bind Crown
5 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
Part 2 Prohibition on smoking in smoke-free areas
Part 2 Prohibition on smoking in smoke-free areas
Part 2 Prohibition on smoking in smoke-free areas
6 Smoke-free areas—enclosed public places
6 Smoke-free areas—enclosed public places
6 Smoke-free areas—enclosed public places
(1) Every enclosed public place is a smoke-free area for the purposes of this Act.
(2) Schedule 1 contains a list of examples of enclosed public places that are smoke-free areas (irrespective of the name by which the particular place is known).
(3) An enclosed public place is not a smoke-free area if it is an exempt area (see section 11).
s 6: Am 2004 No 110, Sch 1 [2]. Subst 2012 No 56, Sch 1 [8].
6A Smoke-free areas—outdoor public places
6A Smoke-free areas—outdoor public places
6A Smoke-free areas—outdoor public places
(1) An outdoor public place is a smoke-free area for the purposes of this Act if it is any of the following places (or part of any of those places)—
(a) a place that is within 10 metres of children’s play equipment but only if the children’s play equipment is in an outdoor public place,
(b) a swimming pool complex,
(c) an area set aside for or being used by spectators to watch an organised sporting event at a sports ground or other recreational area, but only when an organised sporting event is being held there,
(d) the platform of a passenger railway or light rail station,
(e) a ferry wharf,
(f) a light rail stop (with light rail stop to include any area where persons queue or gather when waiting at a light rail stop),
(g) a bus stop (with bus stop to include any area where persons queue or gather when waiting at a bus stop),
(h) a taxi rank (with taxi rank to include any area where persons queue or gather when waiting at a taxi rank),
(i) a place that is within 4 metres of a pedestrian access point to a building (as provided by subsection (2)),
(j) a commercial outdoor dining area,
(k) a place at a public hospital, health institution or health service under the Health Services Act 1997 that is designated as a smoke-free area by a by-law or regulation under that Act and notified by signs displayed in, or at an entrance to, any such area,
(l) any other outdoor public place that is prescribed by the regulations as a smoke-free area.
(2) A pedestrian access point is an entrance to or exit from a building for use by pedestrians, but does not include—
(a) an entrance to or exit from a building that is used only for residential purposes (including a boarding house and a building in a caravan park), or
(b) an entrance to or exit from a building that is used partly for residential purposes and partly for other purposes if the entrance or exit concerned is used solely for entry to or exit from that part of the building that is used for residential purposes, or
(c) an emergency exit that is locked to entry.
(3) It is a defence to a prosecution for the offence of smoking in a smoke-free area that is a light rail stop, bus stop, taxi rank or within 4 metres of a pedestrian access point to a building if it is established that the accused was smoking only while passing through the smoke-free area and did not remain in the smoke-free area while smoking.
(4) The regulations may exempt a specified outdoor public place or class of outdoor public places from being a smoke-free area under this section.
s 6A: Ins 2012 No 56, Sch 1 [8]. Am 2016 No 27, Sch 2.45.
7 Offence of smoking in smoke-free area
7 Offence of smoking in smoke-free area
7 Offence of smoking in smoke-free area
(1) A person must not smoke in a smoke-free area.
Maximum penalty—5 penalty units.
(2) A person who performs in a theatre or other performance space does not commit an offence under this section by smoking during the performance if smoking is a necessary part of the performance.
(3) It is a defence to a prosecution for an offence under subsection (1) if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the place in which the person was smoking was a smoke-free area.
8 Occupier not to allow smoking in certain smoke-free areas
8 Occupier not to allow smoking in certain smoke-free areas
8 Occupier not to allow smoking in certain smoke-free areas
(1) If a person smokes in contravention of section 7 in any of the following smoke-free areas, the occupier of the smoke-free area is guilty of an offence—
(a) any enclosed public place,
(b) a commercial outdoor dining area.
Maximum penalty—
(a) 10 penalty units, in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(2) It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes that neither the defendant nor any employee or agent of the defendant provided (otherwise than by sale) any ashtray, matches or lighter (or other thing that could facilitate smoking) in the smoke-free area concerned and that—
(a) neither the defendant nor any employee or agent of the defendant knew, or could reasonably be expected to have known, that the person concerned was smoking in the smoke-free area, or
(b) as soon as the defendant or any employee or agent of the defendant became aware that the person was smoking in the smoke-free area, the defendant (or that employee or agent of the defendant)—
(i) required the person to stop smoking in the smoke-free area, and
(ii) informed the person that the person was committing an offence by smoking in the smoke-free area, and
(iii) if the person continued to smoke after having been required to stop, required the person to leave the smoke-free area.
(3) A requirement under subsection (2) (b) (iii) that a person leave a smoke-free area—
(a) does not affect any liability (whether arising under an Act, contract or otherwise) of the person to pay for any food or beverage supplied to or ordered by the person (whether or not it has been consumed), and
(b) may include a requirement that the person satisfy, or make arrangements for satisfying, any such liability before the person leaves the smoke-free area.
s 8: Am 2012 No 56, Sch 1 [9].
9 Occupier to display signs
9 Occupier to display signs
9 Occupier to display signs
(1) The occupier of a smoke-free area must not fail to display within that area the signs (if any) prescribed by the regulations, in the manner (if any) prescribed by the regulations.
Maximum penalty—
(a) 5 penalty units, in the case of a natural person, or
(b) 25 penalty units, in the case of a body corporate.
(2) The regulations may exempt any public place, or class of public place, from subsection (1).
(3) The following outdoor public places are exempt from subsection (1)—
(a) a place that is within 10 metres of children’s play equipment,
(b) a sports ground or other recreational area, unless the regulations otherwise provide in a particular case or class of cases,
(c) a light rail stop,
(d) a bus stop,
(e) a taxi rank,
(f) a place that is a smoke-free area because it is within 4 metres of a pedestrian access point to a building.
(4) The Director-General may enter into arrangements with any government or local government agency or body for the display of signs relating to smoking in an outdoor public place that is exempt from subsection (1) and in respect of which the government or local government agency or body is the occupier.
s 9: Am 2012 No 56, Sch 1 [10].
10 Duty to prevent spread of smoke
10 Duty to prevent spread of smoke
10 Duty to prevent spread of smoke
(1) If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the smoke-free area must take reasonable steps to prevent smoke caused by smoking in the other parts of those premises from penetrating the smoke-free area.
Maximum penalty—
(a) 10 penalty units in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(2) If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the other parts of those premises in which smoking is allowed must take reasonable steps to prevent smoke caused by smoking in those other parts from penetrating the smoke-free area.
Maximum penalty—
(a) 10 penalty units in the case of a natural person, or
(b) 50 penalty units, in the case of a body corporate.
(3) The Minister may issue guidelines from time to time as to what constitutes reasonable steps to prevent the penetration of smoke into smoke-free areas.
(4) An occupier who, in relation to premises or a part of premises, complies with any guidelines in force for the time being under subsection (3) is to be considered as having taken all reasonable steps as referred to in subsections (1) and (2) in relation to those premises or that part.
Part 3 Exempt areas
Part 3 Exempt areas
Part 3 Exempt areas
pt 3, hdg: Am 2004 No 110, Sch 1 [3].
10A Definitions
10A Definitions
10A Definitions
(1) In this Part—
bar room means a room in which drinks are ordered, served and consumed, but does not include a gaming machine room or a recreation room.
casino means premises, or part of premises, defined as a casino for the time being under section 19 of the Casino Control Act 1992 and includes the whole or a specified part of any premises the subject of an order under section 89 (3) of that Act.
casino private gaming area means an area in a casino that is used substantially for gaming by international visitors to the casino other than an area used substantially for the purposes of gaming machines.
club means the premises of a registered club within the meaning of the Registered Clubs Act 1976.
dining area means an area where meals are served and are consumed at tables.
gaming machine has the same meaning as in section 8 of the Casino Control Act 1992.
gaming machine room means a room used substantially for the purposes of gaming machines.
hotel means any premises that are the subject of a hotel licence in force under the Liquor Act 2007.
nightclub means
This is an opening excerpt, not the complete document.