Smoke-Free Public Places Regulation 2005

The regulation’s core concepts are “covered”, “75% or more enclosed”, “closed area” and “open area”, and the way those concepts are measured for walls and overhead cover. These concepts are technical and outcome‑determining.

Covered (s 7)

• A place is “covered” if it lies under an overhead cover, defined as a ceiling, roof or other device that prevents or impedes upward airflow. Examples include awnings, skylights and umbrellas (s 7(1) and examples).
• Moveable overhead covers are only treated as covering the area at times when they are present (s 7(2)). The regulation gives the awning example to show partial deployment alters the covered area.

75% or more enclosed (s 8)

• A place is “75% or more enclosed” if the open area of the walls and overhead cover that opens directly to outside air is 25% or less of the sum of the total closed area and the total open area of those elements. In effect the regulation requires the open fraction to be ≤25% for enclosure (s 8).

Closed area and open area for walls (s 9; s 11)

• Closed area of walls equals the actual surface area of the walls that form the place boundary as measured from inside the place (s 9(2) and (6)).
• A “wall” includes doors, windows and any structure that prevents or impedes lateral airflow; moveable walls are counted only when they form part of the boundary at the relevant time (s 9(3) and (4)).
• Notably, s 9(5) prescribes that a door or window forming part of the boundary must be treated as part of the closed area even if it is open.
• Flyscreen, shadecloth or canvas walls are treated as having a solid surface for closed area purposes (s 9(7)).

Closed area and open area for overhead cover (s 10; s 12)

• The closed area of an overhead cover is the area of its vertical projection (plan view) inside the place (s 10(2)). Thus a sloping ceiling is measured by its plan projection, not its surface area.
• Overhead cover made of flyscreen, shadecloth or canvas is treated as solid (s 10(3)).

Open area composition (s 11; s 12)

• The open area of the walls is the total of the minimum areas required to fill: each gap in wall parts that are not solid; each gap between parts of walls; each gap between walls and nearest point of overhead cover; and each gap between walls and nearest point of floor (s 11(2)(a)-(d)).
• The open area of the overhead cover is the minimum area required to fill gaps in the vertical projection of the overhead cover (s 12(2)). Examples are given in the text (see s 10(2) and s 12).

Designated outdoor smoking areas and buffers (s 13)

• For designated outdoor smoking areas under the Act (see Act definition cross‑referenced in the dictionary), the prescribed buffer height is 2.1 m above the highest point of the area’s floor (s 13(1)). If an overhead cover prevents that height at a point, the buffer height at that point is the height of the cover (s 13(2)).
• The regulation flags that installing a screen or wall buffer may change the classification of the area into an enclosed public place and may trigger building, planning or liquor permit consequences (s 13 Notes).

Other structural points

• The dictionary ties these terms to the Act and relevant definitions: “place includes part of a place” and cross‑references the Act’s definitions, emphasising the regulation is a definitional, technical instrument rather than a standalone prohibition (dictionary and s 3).

These concepts form a measurement regime. The regulation’s examples (slats, lattice, awnings, retractable panels) are intended to illustrate borderline cases and encourage consistent application of the measurement rules in ss 7-12. The net legal effect is to fix the point at which a partially open venue becomes an “enclosed public place” under the Act and thus subject to the Act’s prohibitions and offence provisions.

The regulation affects multiple groups through its definitional work and the ancillary prescriptions in Part 3.

Occupiers and neighbouring occupiers (Act interface)

• The regulation supports the Act’s prohibition on smoking in enclosed public places (s 5(1)). Although the regulation itself does not create the occupier or neighbour offences, it alters the set of places to which those offences apply by specifying what constitutes an “enclosed public place” (s 6). The republished law’s note to s 6 refers to occupiers’ duties in the Act, specifically s 8A (occupier permitting smoke into enclosed public place from another part of premises) and s 9 (offence by neighbouring occupier), so occupiers and neighbouring occupiers are materially affected (s 6 Note 1).

Hospitality businesses and licensed premises

• Restaurants, cafés, bars and other licensed premises that have outdoor eating or drinking areas are affected in two ways. First, the enclosure measurement rules (ss 7-12) determine whether an outdoor area is an enclosed public place, which, if it is enclosed, will make smoking in that area an offence under the Act. Second, for licensed premises the regulation prescribes that the floor plan required by the Liquor Regulation 2010 s 6 is the floor plan to be included in a smoking management plan under the Act (s 14). Liquor licence holders must therefore ensure the management plan includes that plan.

Designers, builders and owners of physical structures

• The regulation’s material rules about overhead covers, screens and buffers have planning and building implications. The note to s 13 lists other legislation that may apply: building approval under the Building Act 2004 and development approval under the Planning Act 2023, and identifies potential consequences under the Liquor Act 2010 for premises not meeting requirements (s 13 Note 2). Owners proposing screens, walls or buffer structures must consider these approvals.

Regulators and enforcement agencies

• While the regulation does not itself specify enforcement agencies, it shapes the enforcement universe by determining which spaces are “enclosed public places” subject to the Act. Inspectors or enforcement officers applying the Act will rely on the measurement rules in ss 7-12 to decide whether the prohibition applies at a particular venue or part of premises.

Consumers and patrons

• Members of the public who use outdoor eating and drinking spaces are indirectly affected because the regulation determines whether those spaces are smoke‑free as “enclosed public places”. Patrons and employees in areas that become enclosed under the tests will find smoking prohibited.

Third parties with moveable covers or adaptable layouts

• Owners or occupiers who use awnings, retractable panels or moveable umbrellas are affected because the regulation counts these elements only when present (s 7(2) and s 9(4)). The enclosed status can therefore change with deployment of moveable structures, affecting how and when smoking is permitted.

Legal and compliance advisers

• Solicitors, compliance officers and licensing consultants who advise hospitality and venue owners will need to apply the measurement rules in practical compliance checks and documentation (for example, incorporating the Liquor Regulation floor plan into smoking management plans, s 14).

In short, the regulation primarily affects those who manage or use built environments where outdoor and indoor edges are blurred. By defining “covered” and specifying how to compute “75% or more enclosed”, it changes the boundary between where the Act’s smoking prohibitions operate and where they do not.

The regulation is principally definitional and prescriptive about measurement; the operative duties and rights arise from the Act, but the regulation changes who must comply by determining which spaces are subject to those duties. The key obligations and practical entitlements that follow from the regulation’s provisions are as follows.

Obligations derived from the Act but made operational by the regulation

• Occupiers must take reasonable steps to prevent smoke from premises entering an enclosed public place (s 6 Note 1 refers to Act ss 8A and 9). The regulation makes this test operational by defining which parts of premises count as enclosed public places (ss 6-12).

Specific measurement duties for determine enclosure

• A person (occupier, owner or enforcement officer) who must determine whether a place is enclosed must:
  • Establish whether the place is covered by an overhead cover that impedes upward airflow (s 7(1)).
  • Measure the closed and open areas of walls and overhead cover according to the methods in ss 9-12.
  • Treat doors and windows that form part of the boundary as part of the closed area even when open (s 9(5)).
  • Treat flyscreen, shadecloth or canvas as solid for closed area purposes (s 9(7), s 10(3)).
  • Count moveable walls or overhead covers only to the extent they are in place at the relevant time (s 7(2), s 9(4)).

Prescribed requirements for designated outdoor smoking areas (rights/limits)

• The regulation prescribes the buffer height for designated outdoor smoking areas as 2.1 m above the highest point of the floor of that area (s 13(1)). If a buffer cannot reach that height at a point due to an overhead cover, the maximum at that point is the overhead cover’s height (s 13(2)). This is a prescriptive limit on how buffers may be deployed.

Smoking management plans for licensed premises (duty)

• For licensed premises a smoking management plan under the Act must include the floor plan of the licensed premises as defined by the Liquor Regulation 2010 s 6; s 14 prescribes that floor plan as required documentation.

Rights under the regulation

• The regulation gives occupiers and owners a set of technically precise rules that can be used defensibly to demonstrate whether a space is enclosed; the measurement rules provide a predictable framework for compliance and for challenging enforcement decisions where measurements are material to whether an offence exists.

Procedural clarifications

• Notes clarify that the dictionary in this regulation is part of the regulation (s 3) and that notes are explanatory only and not law (s 4). Those clarifications affect legal argument about the normative weight of examples and notes.

Administrative consequences and approvals

• The regulation explicitly informs occupiers that adding screens or buffer walls may trigger building, planning or liquor licensing consequences (s 13 Note 2). This creates an implicit duty to check those other regimes before altering premises.

Penalty unit context

• The regulation’s republication front matter records the penalty unit values current on the republication date for offences under the Act and this regulation ($160 for an individual and $810 for a corporation), which gives immediate monetary context to the Act‑based duties when the regulation is enforced.

In summary, the regulation imposes measurement and documentation duties and prescribes specific physical limits for designated outdoor smoking areas. It does not in itself create separate smoking offences, but by fixing the boundary of “enclosed public place” it determines the scope of the Act’s duties and obligations.

The regulation does not itself prescribe the substantive offences or specify an enforcement agency. Instead it operates as the technical scaffolding used to determine whether the Smoke‑Free Public Places Act 2003 applies to a given place, and the Act creates the offences and penalties. However, the republication materials included with the regulation supply the penalty unit values that apply at the republication date.

Penalty unit values

• The republication front matter records that at the republication date the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation, citing the Legislation Act 2001 s 133 (front matter “Penalties”). These figures supply the monetary scale with which any Act‑based offences will be calculated at that time. Practitioners must check current penalty unit rates in the Legislation Act because the republication records the rates only as at the listed date.

Enforcement mechanism and who enforces (what the regulation says)

• The regulation itself does not name enforcement agencies or provide an enforcement regime. Enforcement and penalties for smoking in enclosed public places are matters of the Smoke‑Free Public Places Act 2003, which the regulation supports by defining enclosure (s 5(1) notes that the Act prohibits smoking and creates offences; s 5(3) cross‑refers to the Act’s dictionary for “enclosed public place”). Therefore the identity of enforcement officers, inspection powers, infringement notice procedures and the precise penalty schedules are found in the Act, not in the regulation.

Practical implications for enforcement

• The measurement rules (ss 7-12) will be the operational tools used by inspectors, authorised officers and courts to decide whether a location is an enclosed public place. The regulation’s detailed measurement methodology reduces factual ambiguity by prescribing:
  • how to treat moveable covers and walls (presence at the time matters, s 7(2), s 9(4));
  • that doors and windows forming the boundary count as closed area even if open (s 9(5));
  • that flyscreen, shadecloth and canvas count as solid surfaces (s 9(7), s 10(3));
  • and that overhead covers are measured by vertical projection (s 10(2)).

Evidential and administrative burdens

• Because the determination of enclosure often hinges on specific area calculations and the status of moveable elements at a point in time, enforcement may require measurements, photographic evidence, and contemporaneous records showing whether retractable walls or awnings were deployed. The regulation provides the measurement rules but does not supply standardized forms or measurement tolerances; these practical evidential details will fall to implementing agencies or courts.

Interaction with other regulatory penalties and approvals

• The note to s 13 warns that structural responses to meet or avoid enclosure status may engage other regulatory regimes with separate enforcement and penalties: the Building Act 2004 (building approval), the Planning Act 2023 (development approval), and the Liquor Act 2010 (suitability of premises for licence or permit) (s 13 Note 2). Non‑compliance with those regimes can attract distinct sanctions beyond the smoking offences.

Recommendation for practitioners

• Because the regulation foregrounds measurement and materials rules as determinative, clients should preserve documentary and photographic evidence about the physical state of walls and overhead covers at relevant times, keep as‑installed plans, and where necessary obtain building and planning approvals before erecting structures that might change enclosure status.

In short, penalties are imposed under the Act; the regulation provides the measurement rules that determine whether the Act’s penalties can be applied at a given location. The regulation therefore affects enforcement practice by reducing definitional uncertainty but also creates practical evidential obligations.

The regulation deliberately cross‑references and relies upon other ACT statutes for definitions, enforcement, and complementary regulatory regimes. Its function is technical; it does not supplant or replicate the substantive prohibitions and licensing regimes found elsewhere.

Primary relationship with the Smoke‑Free Public Places Act 2003

• The regulation is made under the Smoke‑Free Public Places Act 2003 and explicitly defines what “enclosed public place” means for the Act (s 5(3) and s 6). The Act contains the substantive prohibition on smoking and the offence provisions; this regulation provides the measurement methodology to implement that Act. The dictionary notes emphasise that terms used here have the same meanings as in the Act (dictionary, notes).

Legislation Act 2001 (republication, notes and definitions)

• The regulation uses the Legislation Act’s rules about dictionaries and notes. Section 3 states the dictionary is part of the regulation, and s 4 clarifies the legal status of notes as explanatory only (s 3; s 4). The republication front matter relies on the Legislation Act for penalty unit calculation (Legislation Act 2001, s 133 cited in front material note).

Building, planning and liquor laws (cross‑regulatory effects)

• The note accompanying s 13 explicitly signals three potential interactions when a proprietor installs a screen or buffer:
  • Building Act 2004, division 3.3: the structure may require building approval.
  • Planning Act 2023, s 148: use of the structure may require development approval.
  • Liquor Act 2010, s 77: if the structure causes premises to fail to comply with certain requirements, the commissioner may decide the premises are not suitable for a licence or permit (s 13 Note 2).
• These cross‑references mean that changes designed to comply with the smoke‑free rules or to create designated outdoor smoking areas may trigger separate approval processes and conditions under planning, building and liquor licensing laws. The regulation does not change those other regimes; it merely warns of their applicability.

Liquor Regulation 2010

• Section 14 prescribes that the floor plan of the licensed premises under Liquor Regulation 2010 s 6 is to be included in the smoking management plan required under the Act (s 14). This is a direct cross‑regulatory requirement aligning the liquor licensing documentation with the smoking management requirements.

Interpretive interaction

• The regulation’s measurement methodology must be applied together with the Act’s substantive provisions and any definitional material in the Act’s dictionary. The regulation reuses signpost definitions to point back to the Act (s 3 and dictionary notes).

Administrative and enforcement intersection

• Because the regulation affects the perimeter between indoor and outdoor spaces, agencies charged with building control, planning approvals and liquor licensing may need to coordinate with those enforcing smoke‑free provisions when premises are altered. The regulation’s notes anticipate this administrative overlap; the regulation itself does not establish a formal interagency process.

Amendment and commencement interplay

• The endnotes show the regulation has been amended in response to wider legislative change (for example renaming and insertion of Part 3 in SL2010‑44, and consequential amendments from the Planning Act 2023 and Statute Law Amendment Act 2025). This demonstrates that the regulation is maintained in the broader statutory ecosystem and that changes elsewhere (for instance in planning law) can produce consequential amendments to the regulation (see endnotes 3-4).

In sum, the regulation is embedded in a network of ACT laws: it operationalises the Act, uses drafting conventions from the Legislation Act, and warns that physical alterations will often interact with building, planning and liquor instruments. Practitioners must therefore consider multiple legislative regimes when advising on structural changes to hospitality premises or when enforcing smoke‑free rules.

The republished regulation includes a concise legislative history and an amendment history in the endnotes. The key amendments and chronological milestones recorded in the republished law are the following (all citations drawn from the endnotes appended to the republished regulation).

Original instrument and early commencements

• Smoking (Prohibition in Enclosed Public Places) Regulation 2005 SL2005‑21, notified LR 8 September 2005. Sections 1 and 2 commenced 8 September 2005, remainder commenced 1 December 2006 (endnote 3).

Renaming and insertions 2010-2011 (SL2010‑44)

• The regulation was renamed to Smoke‑Free Public Places Regulation 2005 by Smoking (Prohibition in Enclosed Public Places) Amendment Regulation 2010 (No 1) SL2010‑44, notified LR 10 November 2010. Various provisions including Part 3 (outdoor eating or drinking places) and ss 13-14 were inserted by SL2010‑44 (see amendment history endnote 4: pt 3 heading inserted SL2010‑44 s 5; s 13 and s 14 inserted SL2010‑44 s 5). Section 6 had a staggered commencement: s 6 commenced 9 December 2011 (endnote 3).

Planning Act consequential amendments 2023

• Planning (Consequential Amendments) Act 2023 A2023‑36 sch 1 pt 1.60 was notified LR 29 September 2023. Section 1 and 2 commenced 29 September 2023; sch 1 pt 1.60 commenced 27 November 2023. The amendment history notes an amendment to s 13 (am SL2010‑44 s 6; A2023‑36 amdt 1.338) in 2023 (endnote 3-4).

Statute Law Amendment Act 2025

• Statute Law Amendment Act 2025 A2025‑29 sch 3 pt 3.87 was notified LR 6 November 2025. Sections 1 and 2 commenced 6 November 2025 and sch 3 pt 3.87 commenced 26 November 2025 (endnote 3). The amendment history records that s 14 was amended by A2025‑29 amdt 3.314 (endnote 4).

Republications

• The endnotes list republication numbers and effective dates: R1 (1 Dec 2006), R2 (9 Dec 2010, following SL2010‑44), R3 (9 Dec 2011 to 26 Nov 2023), R4 (27 Nov 2023 to 25 Nov 2025), and the current republication R5 effective 26 Nov 2025 (endnote 5). These republications reflect renumberings and folding in of editorial changes authorised by the Legislation Act.

Editorial changes and Legislation Act part 11.3

• The republished law explains that the Parliamentary Counsel may make editorial amendments under the Legislation Act 2001, part 11.3 when preparing republications, and that editorial changes do not change the effect of the law (prefatory materials). The republication notes that not all editorial amendments are annotated in the amendment history and that details may be obtained from the Parliamentary Counsel’s Office (endnote 1).

Practical points from amendment history

• Part 3 (outdoor eating or drinking places) and the two specific prescriptions in ss 13-14 are post‑2010 insertions (SL2010‑44 s 5). The 2010 amendment thus materially broadened the regulation from purely enclosure‑measurement to include targeted regulation for designated outdoor smoking areas and smoking management plans for licensed premises.
• More recent amendments reflect alignment with reforms in planning law (A2023‑36) and statutory housekeeping (A2025‑29).

For researchers and practitioners the endnotes supply the authoritative trail of amendments and republications. When advising on present obligations, cross‑check the effective commencement dates recorded in the endnotes because some provisions (notably s 6 previously) have had staggered commencements where the operative date differs from notification.

The republished regulation itself does not record any court decisions, judicial interpretations or litigation history. The endnotes and the main text of the regulation contain only legislative and editorial histories (see endnotes 3-5) and do not name any cases. Consequently, the republished law provides no internal account of judicial controversy or precedent.

Practical consequences

• Because the regulation is technical and its effect often turns on measured facts , for example whether open area is 25% or less of the total (s 8), whether a door or window is treated as closed area even if open (s 9(5)), or how to measure overhead cover by vertical projection (s 10(2)) , disputes about enforcement and interpretation are plausible. However, any such disputes, judicial decisions, or administrative rulings are not recorded in the text of the regulation and must be sought in case law databases, tribunal decisions, or enforcement agency records outside the republished instrument.

Advice to litigators and researchers

• To establish how courts or administrative bodies have applied these measurement rules, researchers should search decisions under the Smoke‑Free Public Places Act 2003 and any related administrative determinations. The republished regulation should be used as the statutory baseline for measurement methodology in any litigation; the outcome in a particular case will turn on the Act, the regulation and the particular facts, and any judicial interpretation of ambiguous elements would be found in external case law.

Confirmation of absence of recorded litigation in the republished law

• The endnotes do not list cases; the main body contains only examples and measurement rules. Therefore the republished instrument does not provide litigation history material within its own pages.

In short, the regulation contains no litigation history; practitioners must examine external legal sources (court and tribunal decisions, inspectorate guidance) to find how enforcement agencies and tribunals have applied these provisions in practice.

The regulation contains several drafting choices and tests that can produce surprising or counterintuitive compliance outcomes. These are practical “gotchas” that advisers should flag to occupiers, licensees and enforcers because they change where the Act applies in ways that are not obvious from a plain understanding of “indoor” versus “outdoor”.

Doors and windows counted as closed even if open (s 9(5))

• A door or window that forms part of the boundary of a place must be treated as part of the closed area even if it is open. This is likely to catch proprietors who assume that opening windows or doors converts an area into outdoor space; legally the regulation treats those elements as closed area for the enclosure calculation, potentially moving the place across the 75% threshold.

Moveable elements counted only when present (ss 7(2) and 9(4))

• Retractable awnings, panels and umbrellas are counted only to the extent they are in place at a particular time. A venue whose enclosure status changes with daily or seasonal deployment of moveable covers may therefore be compliant at some times and not at others. This imposes a need for contemporaneous evidence of the configuration when a smoking offence is alleged.

Treatment of flyscreen, shadecloth and canvas as solid (ss 9(7) and 10(3))

• Surfaces that visually appear permeable, such as flyscreen, are legally treated as solid surfaces for closed area calculation. That treatment reduces open area and can push a venue across the enclosure threshold. Operators who install such materials might unintentionally create an enclosed public place.

Overhead cover measured by vertical projection (s 10(2))

• The closed area of an overhead cover is the area of its projection onto a horizontal plane (plan view), not the ceiling’s surface area. Sloping ceilings will therefore present a smaller closed area than their surface area implies, and lattice or slatted covers will have gaps counted in open area. Measurement mistakes here can cause a mismatch between perceived and legal enclosure.

Open area defined as minimum area to “fill” gaps (s 11(2) and s 12(2))

• The regulation defines open area in terms of the minimum area required to fill gaps between wall parts, between walls and overhead cover, and between walls and floor. The “minimum area” language implies geometric filling to compute the open fraction; practitioners may need technical drawings or expert measurement evidence to produce legally useful figures.

Buffer height paradox for designated outdoor smoking areas (s 13)

• The prescribed buffer height of 2.1 m (s 13(1)) is intended to protect non‑smoking patrons, but installation of a screen or wall buffer reaching that height may transform the outdoor smoking area into an enclosed public place because added screens or walls increase the closed area (s 13 Note 1). The regulation itself flags this risk in its notes. The practical effect is that attempting to create a screened designated outdoor smoking area could paradoxically bring the smoking prohibition into force if the screening increases enclosure beyond 75%.

Construction and planning approvals (s 13 Note 2)

• The note to s 13 warns that structures may require building and development approvals and may affect liquor licensing suitability (Building Act 2004, Planning Act 2023, Liquor Act 2010). Operators who erect walls or screens without checking approvals risk separate compliance liabilities.

Temporal and evidential complexity

• Because moveable structures change enclosure status over time, inspection evidence must record the exact configuration at the time of inspection. Failure to keep contemporaneous records or photographic evidence is an evidential risk, particularly given that doors/windows count as closed areas even when open.

Complexity of calculation and reliance on plan views

• The overhead cover closed area is a plan projection (s 10) and a slatted lattice’s gaps count as open area (examples). This measurement regimen is geometric and can be non‑intuitive; small changes in screen height, panel deployment or roof overhang can change the percentages. Businesses may need a measured plan or surveyor to reliably determine their status.

Administrative gap: regulation does not supply measurement forms or tolerances

• The regulation sets the method but not the precise measurement tolerances, rounding rules or a standard form for calculations. Enforcement agencies may apply pragmatic rounding or require professional certification; the regulation itself does not guide that operational practice.

Interplay with liquor licensing documentation

• Section 14 prescribes that the floor plan under Liquor Regulation 2010 s 6 is the required floor plan for a smoking management plan. Practitioners should ensure registered liquor‑licence floor plans align with the enclosure calculations; mismatches between different floor plan versions can create compliance disputes.

Penalty unit volatility

• The republication records penalty unit values at a point in time. Penalty unit values change under the Legislation Act and other budgetary processes. Practitioners relying on the republication front matter must verify current penalty unit values when assessing monetary exposure.

In short, the main practical pitfalls are counterintuitive classification outcomes driven by the counting rules for doors, moveable elements and fabric screens, the paradox that protective buffers can create enclosure, and the evidential burden to show the configuration at the relevant time. Advisers should pre‑empt these gotchas by using measured plans, contemporaneous photographs and by checking building/planning/liquor approvals before installing structures.

Compliance with the Smoke‑Free Public Places Regulation 2005 is about ensuring that the spatial and material configuration of a premises is documented and managed so that proprietors know whether the Smoke‑Free Public Places Act 2003 applies. The regulation prescribes measurement rules and a small number of documentary requirements for licensed premises. Below are concrete, source‑grounded steps to comply.

1. Establish whether a space is covered

• Apply s 7: determine whether the area is under a ceiling, roof or other device that prevents or impedes upward airflow. Treat awnings, skylights and umbrellas as potential overhead cover. For moveable covers record their deployment status at the times the area is used for dining or smoking (s 7(2)).

2. Produce a plan view and measured drawing

• Prepare a horizontal plan (vertical projection) of the overhead cover and the internal wall boundary, because s 10(2) specifies the closed area of overhead cover is its plan projection. Include precise dimensions so closed area and open area can be calculated as required by ss 9-12.

3. Measure closed and open areas using the regulation’s formulas

• For walls:
  • Count the closed area as the actual surface area of boundary walls from inside the place, including doors and windows even if open (s 9(2), s 9(5), s 9(6)).
  • Treat flyscreen, shadecloth and canvas as solid surfaces for closed area (s 9(7)).
• For overhead cover:
  • Use plan projection to work out closed area (s 10(2)); treat flyscreen, shadecloth and canvas as solid (s 10(3)).
• For open area:
  • Fill gaps between non‑solid wall parts, gaps between walls and overhead cover, and gaps between walls and floor (s 11(2)(a)-(d) and s 12(2)). Compute the open area as the minimum area required to fill those gaps.
• Apply s 8: calculate whether open area ≤25% of (closed area + open area). If yes and the place is covered, it is “75% or more enclosed” and therefore an enclosed public place (s 6 and s 8).

4. Document moveable elements and time‑stamp configurations

• Because moveable covers and walls count only when present (s 7(2), s 9(4)), keep contemporaneous records (time‑stamped photos, log entries) showing whether retractable panels and awnings were deployed at relevant times. This evidential practice will be critical if an enforcement officer alleges a breach.

5. For licensed premises, ensure the smoking management plan includes the Liquor Regulation floor plan (s 14)

• Section 14 prescribes that the floor plan required under Liquor Regulation 2010 s 6 is the floor plan to include in a smoking management plan. Ensure your smoking management plan contains that exact floor plan and that it is up to date.

6. Be cautious when installing screening or buffer walls (s 13)

• For designated outdoor smoking areas, ensure any screen or wall buffer meets the prescribed height of 2.1m above the highest point of the floor (s 13(1)), unless impossible because of an overhead cover (s 13(2)). Before installing screens check whether the structure will push the area into enclosure (s 13 Note 1) and whether building approval, planning approval or liquor licensing consequences may follow (s 13 Note 2). Obtain any necessary approvals under the Building Act 2004 and Planning Act 2023, and liaise with liquor licensing authorities if relevant.

7. Train staff and put up signage

• Make staff aware of the enclosure calculation and of times when an area is covered. Use clear signage to indicate smoking status at any point in time, particularly where enclosure status may alter with deployment of moveable items.

8. Seek professional measurement or legal advice for borderline cases

• The measurement rules are geometric and can involve technical interpretation. Where the open area is close to the 25% threshold, obtain measured drawings, surveyor certification or a legal opinion applying ss 7-12 to the site plan.

9. Maintain records of approvals and plans

• Keep copies of building approvals, development approvals, liquor licence documents (including the floor plan required by the Liquor Regulation 2010 s 6), and any smoking management plans submitted to authorities. The regulation’s cross‑references make such records material to compliance checks.

10. Review periodically and after modifications

• If the premises are altered, or if fixtures such as awnings or blinds are installed or changed, re‑apply the measurement rules. The regulation’s endnotes show it has been amended over time; similarly, physical changes can alter enclosure status and obligations.

11. Verify penalty exposure

• Check the current penalty unit values under the Legislation Act when calculating potential fines; the republication records the values at the republished date but penalty units change over time and are not fixed by this regulation.

Concluding compliance note

• The regulation gives a prescriptive measurement regime that can be complied with through careful planning, documentation and, where necessary, professional measurement. The principal compliance tasks are to (a) prepare accurate plans showing walls and overhead cover in plan view, (b) calculate closed and open areas per ss 9-12, (c) document the presence or absence of moveable elements at relevant times, and (d) coordinate any structural modifications with building, planning and liquor licensing regimes referenced in s 13 Note 2.

Following these steps will allow proprietors and occupiers to determine, on a documented basis, whether a given place is an “enclosed public place” under the Act in accordance with the rules in this regulation.