Smoke-free Environment Regulation 2016

Applicable courtyard or garden (clause 4(1)). This is a defined subset of outdoor spaces. To qualify, a courtyard or garden must adjoin a building, be substantially surrounded by a fixed fence, wall or similar structure, be set aside for persons using the adjoining building, and not form part of any public thoroughfare generally used by pedestrians other than those persons. The definition is narrower than the everyday meaning of “courtyard” or “garden”. For example, a courtyard that forms part of a public laneway or is used by the general public as a shortcut is excluded. Only those spaces that are effectively part of the private or semi-private amenity of a building count. Once a courtyard or garden meets this definition, the outside area within 4 metres of any entrance to or exit from it becomes a prescribed smoke-free area. This means a person cannot smoke within 4 metres of the door or gate into that courtyard or garden, even if that door or gate is on a public footpath.

Substantially enclosed (clause 8). The Regulation provides a quantitative test for whether a covered outside area (e.g., a veranda, beer garden with roof and partial walls) counts as an enclosed public place where smoking is banned. The test: calculate the total actual enclosed area of the ceiling and wall surfaces and compare it to the total notional ceiling and wall area. If the actual exceeds 75 per cent of the notional, the place is substantially enclosed. The calculation method is detailed: the notional area assumes continuous walls of uniform height equal to the lowest ceiling height; the actual enclosed area includes gaps that do not open directly outside, all doors and windows (even if open) except those that are locked open, and moveable structures such as retractable awnings and umbrellas (but not security grills or shutters used only when premises are closed). This creates complexity: a venue operator must measure or estimate the effect of open windows, locked-open doors, and any top-of-roof structure. The Regulation is explicit that a “ceiling” includes any structure or device that prevents or impedes upward airflow, and a “wall” includes any structure that prevents or impedes lateral airflow. The practical effect is to pressure operators to either fully enclose (which then bans smoking entirely under the Act) or open up sufficiently to stay below 75 per cent (which allows smoking if other conditions are met). The 75 per cent threshold creates a bright line but the measurement process is not simple.

Locked-open door or window (clause 8(8)). Defined as a door or window that opens directly to the outside and is secured in its fully open position by a key-operated lock. If a door or window is merely open but not locked, it is included in the actual enclosed area calculation, making it harder to stay under 75 per cent. Only when it is locked open can its area be excluded from the actual enclosed total. This imposes a practical requirement: an occupier who wants to rely on open doors or windows to allow smoking must install lockable mechanisms and ensure they are kept locked fully open during all hours of operation (clause 9). Failure to do so is an offence. The definition expressly excludes security grills, shutters, or screens that are used only when premises are closed and are fully open at other times; those are not counted as moveable structures.

Smoking prohibited symbol (clause 6(3)). The Regulation mandates use of the symbol from Australian Standard AS 1319-1994, Safety signs for the occupational environment, to indicate where smoking is prohibited. This is a specific national standard designed for workplaces, not for hospitality or outdoor settings. The symbol must be at least 90 mm in diameter. This standard may not be readily available to all small business occupiers, imposing a search and purchase cost.

The Regulation directly affects several groups. Occupiers of enclosed public places bear the most detailed obligations. They must ensure that any area that is substantially enclosed under the 75 per cent test is smoke-free. If they wish to allow smoking in a partially enclosed space, they must either keep the space under 75 per cent enclosure by using locked-open doors or windows, or else face liability for facilitating smoking in an enclosed public place. The occupier must also display prescribed signs at the entrance and within the area in sufficient numbers and prominence. An occupier may be exempt from displaying signs if the place is one where persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted and where persons do not usually smoke (clause 7). This exemption is subjective and creates uncertainty; an occupier cannot be sure a court or inspector will agree that “custom” satisfies the test. The occupier is also subject to the offence under clause 9 if doors or windows relied upon to avoid the enclosure definition are not locked fully open for the entire hours of operation each day.

Building owners and managers of buildings that have courtyards or gardens meeting the definition in clause 4 are affected because the 4-metre buffer zone around entrances or exits becomes smoke-free. This may require them to install signage, enforce no-smoking on adjacent footpaths, or redesign access points.

Persons who smoke are affected by the expansion of smoke-free areas. They cannot smoke within 4 metres of an entrance or exit to an applicable courtyard or garden, even if that entrance is on a public footpath. They must also comply with the sign requirements in smoke-free zones generally. The penalty notice amount is $300 (clause 11), which is a fixed monetary sanction that does not require a court appearance but carries the same consequences as a fine.

Enforcement bodies gain specific powers to bring proceedings. Chief executives of local health districts can bring proceedings for general smoking offences under s 7(1) of the Act. Chief executives of statutory health corporations or public hospitals can bring proceedings for smoking in the smoke-free area described in s 6A(1)(k) of the Act (which relates to grounds of public hospitals or health services, though the Regulation does not reproduce the Act). Police officers can bring proceedings for smoking in the areas listed in s 6A(1)(d)-(h), which include public swimming pools, sports grounds, and outdoor public transport stops (again, as specified in the Act). This division of enforcement responsibility draws on the health bureaucracy rather than relying solely on police or local council rangers, potentially increasing the number of authorised officers but also raising questions about training and consistency of enforcement.

Small business operators in hospitality venues are especially affected by the 75 per cent enclosure test and the locked-open door requirement. A pub with a beer garden that has a retractable roof and partial walls must calculate the enclosure ratio carefully. If they want to allow smoking, they may need to invest in removable walls, lockable open doors, or structural changes to stay under 75 per cent. The cost of compliance is not trivial and may involve buying locking mechanisms, installing signs, and training staff to ensure doors are locked open throughout trading hours. The $300 penalty notice for an individual smoking under s 7(1) is modest, but the occupier offence under clause 9 carries a maximum of 25 penalty units for a body corporate (currently $2,750), which is more significant.

Duty not to smoke in prescribed smoke-free areas. Section 7(1) of the Act (incorporated by reference) prohibits smoking in smoke-free areas. The Regulation extends those areas to include the 4-metre buffer zone around entrances/exits of applicable courtyards or gardens (clause 4(2)). A person who smokes in that zone commits an offence. The duty is strict: there is no requirement to prove that the person knew the area was smoke-free, though the presence of signs may assist in establishing knowledge for other purposes.

Duty to display signs. The occupier of a smoke-free area must display signs that comply with clause 6: a 90 mm smoking prohibited symbol, the words “NO SMOKING” in at least 20 mm letters, a reference to the Act, and the words “Penalties may apply”. The signs must be placed at public entrances and within the area in numbers and prominence likely to be seen. For areas designated as not for food consumption under the Act, clause 5 requires a similar standard using a “NO FOOD TO BE CONSUMED IN THIS AREA” message with a symbol or picture. The occupier has no discretion about the format; the Regulation is prescriptive.

Exemption from sign display. Clause 7 provides a limited right: an occupier may be excused from displaying signs if the place is one where persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted, and where persons do not usually smoke. This is a high-risk right because it is subjective and fact-specific. An occupier who relies on this exemption and is wrong risks a penalty under s 9(1) of the Act for failing to display signs. The exemption likely applies only to obviously smoke-free locations such as inside a hospital ward or a school classroom, not to ambiguous outdoor spaces.

Duty of occupier to keep locked-open doors and windows locked fully open. Clause 9 creates an offence if an occupier facilitates smoking in an enclosed public place by relying on doors or windows being locked fully open (to stay under 75 per cent enclosure) and those doors or windows are not kept locked fully open for the entire hours of operation each day. This duty is continuous: if a door is unlocked or closed at any time during operating hours, even briefly, the occupier commits an offence. The maximum penalty is 5 penalty units (individual) or 25 penalty units (body corporate). This creates an incentive to automate or monitor door locks constantly.

Right to bring proceedings. Certain officials have the right to bring proceedings for smoking offences. Under clause 10, the chief executive of a local health district can bring proceedings for a s 7(1) offence generally; the chief executive of a statutory health corporation or public hospital can bring proceedings for smoking in s 6A(1)(k) areas; and a police officer can bring proceedings for smoking in s 6A(1)(d)-(h) areas. This means a person who smokes in a public swimming pool (a (d) area) can be prosecuted by a police officer, while a person who smokes in a hospital courtyard (a (k) area) can be prosecuted by a health chief executive. The right to bring proceedings is not exclusive; other persons may also bring proceedings under the Act.

Right to serve a penalty notice. Clause 11 authorises penalty notices for s 7(1) offences with a prescribed penalty of $300. This is a procedural right for enforcement officers to issue on-the-spot fines without a court appearance. The person receiving the notice can elect to pay the fine or contest the matter in court.

The Regulation establishes two categories of penalty. The first is the penalty for the occupier offence under clause 9: maximum 5 penalty units for a natural person and 25 penalty units for a body corporate. The value of a penalty unit in New South Wales is currently $110, so the maximum fine is $550 for an individual and $2,750 for a corporation. However, the courther has discretion to impose a lower amount. The offence is strict in the sense that the occupier must ensure the doors or windows are locked fully open for the entire hours of operation each day. There is no defence of reasonable excuse or due diligence in the text of clause 9, other than the structure of the provision (one who facilitates smoking in reliance on that clause is guilty unless the doors/windows are kept locked fully open). The evidentiary burden would likely fall on the prosecution to prove that the doors/windows were not locked fully open during operating hours, but once that is shown the offence is made out.

The second penalty is for the smoking offence under section 7(1) of the Act, which is enforced via penalty notice under clause 11. The prescribed penalty is $300. This is a fixed amount, not a maximum. The person can choose to pay the $300 penalty notice or elect to have the matter heard in court, where a higher penalty could be imposed (the Act sets the maximum penalty for s 7(1) at 2 penalty units, which is $220, but the penalty notice amount can be higher because it includes administrative costs; the Regulation sets the penalty notice amount at $300, which exceeds the court maximum, but that is permissible because the penalty notice is an alternative to court - if the matter goes to court the court can only impose up to 2 penalty units). This is a curious feature: a person who pays the penalty notice pays more than the maximum court fine for the same offence. This creates an incentive to contest the matter if the person believes they have a defence, but also imposes a higher financial burden on those who choose to pay without contesting. It is a typical structure for penalty notices, but it means the regulation uses a higher administrative penalty to encourage payment.

Enforcement is split among different authorized officers. Clause 10 allows chief executives of local health districts to bring proceedings for any offence under s 7(1). These are administrative officers within the health bureaucracy, not necessarily with legal training. Chief executives of statutory health corporations or public hospitals can bring proceedings only for smoking in the smoke-free area under s 6A(1)(k), which relates to hospital grounds. Police officers can bring proceedings for smoking in the smoke-free areas listed in s 6A(1)(d)-(h), which include public swimming pools, sports grounds, public transport stops, and other outdoor areas. This division means that the enforcer depends on the location of the smoking. A person smoking near a hospital entrance may be prosecuted by a health CEO, while a person smoking at a bus stop may be prosecuted by police. This could lead to inconsistent enforcement priorities and practices. The Regulation does not specify any training requirements for health chief executives to bring proceedings.

The penalty notice regime under clause 11 applies to “an offence under section 7(1) of the Act”. It does not apply to the occupier offence under clause 9. So occupiers cannot receive a penalty notice for failing to lock doors; they must be prosecuted in court. This means an occupier who breaches clause 9 faces a court appearance and potentially a criminal record, whereas a person who smokes in a smoke-free area can pay a $300 fine and avoid court. The enforcement asymmetry may reflect the greater culpability of an occupier who knowingly facilitates smoking, but it also imposes higher transaction costs on the enforcement authority for occupier offences.

The Regulation sits under the Smoke-free Environment Act 2000. It does not amend that Act but prescribes matters that the Act leaves to regulation. For example, the Act in s 6A(1)(l) allows the regulation to prescribe outside areas as smoke-free areas; clause 4 does that for the 4-metre buffer around applicable courtyards and gardens. The Act in s 4A(4) allows the regulation to prescribe sign requirements for food consumption areas; clause 5 does that. The Act in s 9(1) requires signs in smoke-free areas as prescribed; clause 6 prescribes those signs and their manner of display. The Act in s 9(2) allows the regulation to exempt certain places from sign display; clause 7 provides that exemption. The Act in s 20(2)(b) allows the regulation to prescribe who may bring proceedings for certain offences; clause 10 does that. The Act in s 20A allows the regulation to prescribe penalty notice amounts; clause 11 does that.

The Regulation also interacts with the Health Services Act 1997. Clause 10 references the “chief executive of a local health district” and “statutory health corporation” as defined under that Act. This means that the enforcement powers under the Regulation are tied to the organisational structure of the NSW public health system. If that structure changes (e.g., local health districts are merged), the officers eligible to bring proceedings may change without amending this Regulation.

The Regulation incorporates Australian Standard AS 1319-1994 for the smoking prohibited symbol. That standard is not reproduced in the Regulation; an occupier must purchase or access it separately. The standard is a copyright document, so compliance requires either buying a copy or relying on a reproduction elsewhere. This adds a small but real cost to compliance, especially for a small business that does not already have the standard.

The Regulation is subject to the Interpretation Act 1987, which contains definitions and interpretive rules that apply to all NSW legislation. The note in clause 3(1) confirms this. The Regulation also notes that notes included in the Regulation do not form part of the Regulation (clause 3(2)), so they cannot be used to extend or limit the operative provisions.

The Regulation repeals and replaces the Smoke-free Environment Regulation 2007 effective 1 September 2016, under section 10(2) of the Subordinate Legislation Act 1989. That repeal is automatic by force of the 1989 Act, not by this Regulation. The transitional provisions, if any, from the 2007 to 2016 Regulation are not included in this instrument; any transitional arrangements would presumably be in the Act or in separate saving provisions.

The Regulation may also interact with local council smoke-free area by-laws. The Smoke-free Environment Act 2000 does not prevent councils from designating additional smoke-free areas under the Local Government Act or other legislation. The Regulation’s 4-metre buffer around courtyard/garden entrances supplements any existing council bans. A person could be subject to multiple overlapping prohibitions. The Regulation does not specify which prohibition takes precedence, but compliance with the stricter rule is advisable.

The Regulation itself does not contain any amendment history. It is the principal regulation as made on 1 September 2016, replacing the 2007 Regulation. The text provided is the in-force version, which suggests no amendments have been made to the 2016 Regulation as of the date of the source. However, it is possible that amendments have been made after the source was captured; the user should verify against the current NSW legislation website. The note under clause 2 states that the Regulation “replaces the Smoke-free Environment Regulation 2007, which is repealed on 1 September 2016 under section 10 (2) of the Subordinate Legislation Act 1989.” That is the only temporal information given. The Regulation does not reference any earlier amending instruments, nor does it contain a table of amendments. For a deep-dive, the lack of amendment history means the regulation is relatively young and stable, but the user should check for any subsequent changes, especially to penalty unit values or sign specifications.

The Regulation text does not cite any litigation. It is a subordinate instrument that would be interpreted by courts in the context of prosecutions under the Act. There are likely to be cases interpreting the “substantially enclosed” test in clause 8, especially disputes over whether a particular structure is a “wall” or “ceiling” under the definition (which includes anything that prevents airflow). Similarly, the “applicable courtyard or garden” definition in clause 4 may have been litigated to determine whether a particular space is “substantially surrounded” by a fixed fence, or whether it forms part of a “public thoroughfare generally used by pedestrians, other than persons using the adjoining building.” The Regulation does not mention any such cases, and the user should not assume any particular precedent without independent research. The penalty notice amount of $300 may have been challenged as exceeding the maximum court fine, but that is a general question of law under the Act and the Fines Act, not particular to this Regulation.

1. The 4-metre buffer applies only to certain courtyards/gardens, not all. Clause 4(1) defines “applicable courtyard or garden” narrowly. If the courtyard or garden is part of a public thoroughfare generally used by pedestrians other than building users, it is excluded. So a courtyard that is a public shortcut will not trigger the 4-metre buffer. This creates a boundary-drawing problem: the occupier or enforcer must determine pedestrian usage patterns to know if the buffer applies. A courtyard that is used by both building visitors and the general public may fall outside the definition, allowing smoking up to the entrance. This uncertainty undermines the rule of law.

2. The exemption from displaying signs (clause 7) is vague and risky. The test is “persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted” and “persons do not usually smoke”. This is highly fact-dependent. What qualifies as “custom”? A hospital is obvious; a cinema foyer may be; an indoor shopping centre may be. But a small restaurant with an outdoor area? The occupier cannot be confident. If they rely on the exemption and are wrong, they face a penalty for failing to display signs under s 9(1) of the Act. The prudent occupier will display signs anyway, making the exemption largely illusory, but it may still apply in places like courtrooms or libraries where no one would think of smoking.

3. The 75 per cent enclosure test includes open doors and windows that are not locked open. Clause 8(4)(b) includes “any door, window or moveable structure that is, or is part of, a ceiling or wall, regardless of whether the door, window or structure is open (other than the area of any locked-open door or window).” This means a door that is propped open but not locked is counted as part of the actual enclosed area. Only locked-open doors or windows are excluded. So a venue that wants to stay under 75 per cent cannot simply open a door; it must install a key lock and secure the door in its fully open position. This is a mechanical and cost burden. Many venues will need to retrofit locks.

4. The “locked-open” requirement must be maintained for the entire hours of operation each day. Clause 9 requires that if the occupier relies on locked-open doors or windows to allow smoking, those doors or windows must be “kept locked fully open for the entire hours of operation of the place on each day during which the occupier facilitates smoking there.” If a staff member closes the door for 10 minutes to adjust the air conditioning, the occupier commits an offence. The occupier cannot argue that the door was only briefly closed; the duty is absolute. This creates a zero-tolerance trap. Occupiers should consider automated locking systems to ensure continuous compliance, but that increases costs.

5. The penalty notice for smoking under clause 11 is $300, which exceeds the maximum court fine for the same offence. Under the Act, the maximum penalty for s 7(1) is 2 penalty units (currently $220). Yet the penalty notice is $300. This is not unique to this Regulation but is common in NSW penalty notice regimes. However, it means a person who pays the penalty notice pays more than the maximum a court could impose if they fought and lost. The person’s choice is: pay $300 and avoid the hassle, or contest and risk a maximum of $220 but with legal costs and time. This creates a perverse incentive for the state to push penalty notices rather than court proceedings, and a disincentive for individuals to contest even if they believe they are innocent. The higher amount also acts as a deterrent but is structured regressively.

6. The sign requirements are prescriptive and use a standard (AS 1319-1994) that may not be immediately available. The smoking prohibited symbol must be from that standard. The standard is a commercial document. A small business cannot simply draw a symbol; it must purchase the correct graphic or find a compliant sign supplier. The size (90 mm diameter) and text height (20 mm) are mandatory. Signs that are in any way different (e.g., no symbol, different wording) are non-compliant and could potentially defeat a prosecution for no-smoking if the area was not properly designated.

7. The definition of “ceiling” and “wall” in clause 8 is extremely broad. They include “any structure or device (whether fixed or moveable) that prevents or impedes upward airflow” or “lateral airflow”. This captures umbrellas, retractable awnings, and even dense vegetation if it impedes airflow. A venue with a row of tall hedges around a beer garden might need to consider those hedges as walls for the enclosure calculation. The occupier must physically test airflow or assume the worst. Moveable structures like umbrellas are included, but security grills that are fully open except when premises are closed are excluded. This distinction between moveable structures (included) and certain security devices (excluded) may lead to disputes about whether a lattice screen is a moveable structure or not.

8. The enforcement split (clause 10) may cause jurisdictional confusion. A person who smokes near a hospital entrance could be prosecuted by a police officer, but only a health chief executive can bring proceedings for the s 6A(1)(k) area. If a police officer issues a penalty notice for smoking in a hospital area, the validity of that notice could be challenged on the basis that the officer was not authorised to bring proceedings for that specific subsection. The Regulation does not give police authority to enforce all smoke-free areas; only those in s 6A(1)(d)-(h). A person issued a penalty notice in the wrong category could argue the notice is invalid. This drafting asymmetry may lead to technical defences.

For an occupier of a public place (such as a pub, club, restaurant, or hotel) seeking to allow smoking in a partially covered outdoor area, compliance involves a structured process.

Step 1: Determine if the area is an enclosed public place. Use the 75 per cent test in clause 8. Measure the ceiling area (any structure impeding upward airflow) and wall surfaces (any structure impeding lateral airflow). Calculate the total notional ceiling and wall area assuming continuous walls of uniform height equal to the lowest ceiling height. Then calculate the total actual enclosed area by including all gaps that do not open directly outside, all doors/windows (even if open) except locked-open doors/windows, and all moveable structures (umbrellas, retractable awnings). Exclude gaps opening directly outside (other than open doors/windows) and locked-open doors/windows. If the actual is more than 75 per cent of the notional, the area is substantially enclosed and smoking is banned. If it is 75 per cent or less, the area is not substantially enclosed and smoking may be permitted, subject to other limitations.

Step 2: If the area is not substantially enclosed but you want to rely on doors or windows to stay under 75 per cent, ensure they are locked fully open. Install key-operated locks that secure doors and windows in their fully open position. Maintain them locked open for the entire hours of operation each day. Do not close them at any time during trading hours, even temporarily. Train staff to never unlock or close those doors/windows. Consider automated timers or locks to ensure compliance. Failure results in an occupier offence under clause 9.

Step 3: Display prescribed signs in any smoke-free area. For areas where smoking is prohibited (including the 4-metre buffer zones around applicable courtyard/garden entrances, and any substantially enclosed area), display signs complying with clause 6. Obtain a compliant smoking prohibited symbol from Australian Standard AS 1319-1994, at least 90 mm in diameter. Add the words “NO SMOKING” in letters at least 20 mm high, a reference to the Act, and the words “Penalties may apply”. Place signs at public entrances and within the area in sufficient numbers and prominence to be seen. Do not rely on the exemption in clause 7 unless you are absolutely certain that persons would expect no smoking by custom (e.g., in a courtroom). When in doubt, display signs.

Step 4: If you operate a building with a courtyard or garden that adjoins the building, is substantially surrounded by a fixed fence or wall, is set aside for building users, and is not a public thoroughfare, ensure the area within 4 metres of any entrance/exit to that courtyard/garden is smoke-free. The occupier may need to install signage and enforce the ban in that buffer zone. The buffer zone includes public footpaths if they are within 4 metres. The occupier may not own those footpaths, but the smoking prohibition still applies; enforcement will be by the relevant authority.

Step 5: For areas designated as not for food consumption under the Act, display signs under clause 5: a picture or symbol indicating no eating (at least 90 mm diameter) and the words “NO FOOD TO BE CONSUMED IN THIS AREA” in letters at least 20 mm high, with a reference to the Act. Display at entrances and within the area.

Step 6: Record compliance. Keep documentation of the 75 per cent calculation, including measurements and photographs. Record that locks were installed and operating. Keep purchase records of compliant signs. This will assist in defending any prosecution if a breach is alleged.

Step 7: For enforcement authorities, ensure that proceedings are brought only by the authorised officer under clause 10. A police officer should not issue a penalty notice for smoking in a hospital courtyard (s 6A(1)(k)); that should be handled by the chief executive of the statutory health corporation. Penalty notices for s 7(1) offences may be issued at $300. Ensure the notice is correctly addressed and served.